EXHIBIT 3.2
HTTP TECHNOLOGY, INC.
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BY-LAWS
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ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The location of the
Corporation's registered office within the State of Delaware, the name of the
registered agent of the Corporation at such office and the post office address
to which the Secretary of State of the State of Delaware shall mail a copy of
process in any action or proceeding against the Corporation that may be served
upon him, shall be in each case as stated in the Certificate of Incorporation.
Section 2. OTHER OFFICES. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation for the election of directors and for the
transaction of such other business as may properly come before the meeting shall
be held within six months following the close of each fiscal year of the
Corporation, or on such other date as may be fixed from time to time by
resolution of the Board of Directors, and at such place within or without the
State of Delaware as shall be designated by the Board of Directors.
Section 2. SPECIAL MEETING. Special meetings of the
stockholders, for any purpose or purposes, may be called at any time by the
Chairman of the Board, if any, or the President of the Corporation or the
majority of the Board of Directors or the holders of more than fifty percent
(50%) of the shares of stock of the Corporation issued and outstanding and
entitled to vote thereat, and shall be called by the Board of Directors. Such
meetings shall be held at such time and at such place within or without the
State of Delaware as shall be specified in the notice of the meeting.
Section 3. NOTICE OF MEETINGS. Notice of the place, date and
time of the holding of each annual and special meeting of the stockholders and
the purpose or purposes thereof shall be given personally or by mail in a
postage prepaid envelope to each stockholder entitled to vote at such meeting,
not less than ten nor more than 60 days before the date of such meeting, and, if
mailed, it shall be directed to such stockholder at his address as it appears on
the records of the Corporation, unless he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. Any
such notice for any meeting other than the annual meeting of stockholders shall
indicate that it is being issued at the direction of the Chairman of the Board,
if any, the President, the Board of Directors or the stockholders, which notice
shall not be required to be given to any stockholder who shall attend such
meeting in person or by proxy and shall not, at the beginning of such meeting,
object to the transaction of any business because the meeting is not lawfully
called or convened, or who shall, either before or after the meeting, submit a
signed waiver of notice, in person or by proxy. Unless the Board of Directors
shall fix a new record date for an adjourned meeting, notice of such adjourned
meeting need not be given if the time and place to which the meeting shall be
adjourned 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 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.
Section 4. QUORUM. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the stockholders, the presence
in person or by proxy of the holders of a majority of the shares of stock of the
Corporation issued and outstanding and entitled to vote shall constitute a
quorum for the transaction of any business. In the absence of a quorum, the
holders of a majority of the shares of stock present in person or by proxy and
entitled to vote or, if no stockholder entitled to vote is present, then any
officer of the Corporation, may adjourn the meeting from time to time. At any
such adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at the meeting as originally called.
Section 5. ORGANIZATION. At each meeting of the stockholders,
the Chairman of the Board, if any, or in his absence or inability to act, the
President, or in his absence or inability to act, any person chosen by a
majority of those stockholders present or represented, shall act as chairman of
the meeting. The Secretary, or, in his absence or inability to act, an Assistant
Secretary or any other officer appointed by the chairman of the meeting, shall
act as secretary of the meeting and keep the minutes thereof.
Section 6. ORDER OF BUSINESS. The order of business at all
meetings of the stockholders shall be as determined by the chairman of the
meeting.
Section 7. VOTING. Except as otherwise provided by statute or
the Certificate of Incorporation, each holder of record of shares of stock of
the Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation (a) on the date fixed by the Board
of Directors as the record date for the determination of the stockholders who
shall be entitled to notice of and to vote at such meeting; or (b) if such
record date shall not have been so fixed, then at the close of business on the
day next preceding the day on which notice thereof shall be given; or (c) if
notice is waived, at the close of business on the day next preced ing the day on
which the meeting is held. Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by a proxy
signed by such stockholder or his attorney- in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated in
the order of business for so delivering such proxies. No proxy shall be valid
after the expiration of three years from the date thereof, unless the proxy
provides for a longer period. Every proxy shall be revocable at the pleasure of
the stockholder executing it, except in those cases where an irrevocable proxy
is permitted by law. Except as otherwise required by law, the Certificate of
Incorporation or these By-Laws, any corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the total votes cast at a
meeting of stockholders by the holders of shares present in person or
represented by proxy and entitled to vote on such action. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by written ballot. On a vote by written 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.
Section 8. LIST OF STOCKHOLDERS. The officer who has charge of
the stock ledger of the Corporation shall prepare and make or cause to be
prepared and made, 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.
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Section 9. INSPECTORS. The Board of Directors may, in advance
of any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If inspectors shall not be so appointed or
if any of them shall fail to appear or act, the chairman of the meeting may, and
on the request of any stockholder entitled to vote thereat shall, appoint one or
more inspectors. Each inspector, before entering upon the discharge of his
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 shall determine the number of shares outstanding,
the number of shares represented at the meet ing, the existence of a quorum, 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 chairman of the meeting or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as inspector of an election of directors. Inspectors need
not be stockholders.
Section 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided by the Certificate of Incorporation or by law, any action
which is required or permitted to be taken at any meeting of stockholders may be
taken without a meeting, without prior notice and without a vote, if a written
consent setting forth the action so taken is signed by the holders of record of
outstanding shares having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 11. NOTICE OF STOCKHOLDER BUSINESS. At an annual
meeting of stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or by the Chairman of the Board or the President of the
Corporation or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof (as
determined by the Board of Directors) in writing to the Secretary of the
Corporation. As used in this Section 11 of these By-Laws, the phrase "notice or
prior public disclosure of the date of the meeting" shall mean notice or prior
public disclosure of the date on which the meeting is originally scheduled to be
called to order and shall not refer to notice or prior public disclosure of any
date to which such meeting may be adjourned. A stockholder's notice to the
Secretary shall set forth, as to each matter the stockholder proposes to bring
before the annual meeting, (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
Corporation's stock transfer books, of the stockholder proposing such business,
(c) the class and number of shares of capital stock of the Corporation which are
beneficially owned (such term being used in this Section 11 of these By-Laws
with the meaning ascribed to such term in Rule 13d-3 of the rules under the
Securities Exchange Act of 1934, as amended, as such Rule was in effect on July
1, 1990) by the stockholder and (d) any material interest of the stockholder in
such business. Notwithstanding any other pro vision of these By-Laws, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 11. If the presiding officer of an annual
meeting determines and declares that business was not properly brought before
the meeting in accordance with this Section 11, any such business shall not be
transacted.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The property, business and affairs
of the Corporation shall be managed by the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or the Certificate of
Incorporation or these By-Laws directed or required to be exercised or done by
the stockholders.
Section 2. NUMBER, TERM OF OFFICE, QUALIFICATIONS AND
ELECTION. The number of directors of the Corporation (exclusive of any directors
to be elected by any series of preferred stock, if any, voting separately as a
class) shall be not less than one nor more than fifteen, and within such range
the number of directors at any time shall be determined by resolution of the
Board of Directors or the stockholders. At each annual meeting of stockholders,
directors elected to succeed the directors whose terms expire at such annual
meeting shall be elected to hold office for a term expiring at the next annual
meeting. Directors need not be stockholders. Except as otherwise required by
statute or the Certificate of Incorporation or these By-Laws, directors to be
elected at each annual meeting of stockholders shall be elected by a plurality
of the votes cast at the meeting by the holders of shares present in person or
represented by proxy and entitled to vote for the election of directors.
Section 3. ANNUAL MEETING. The Board of Directors shall meet
for the purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of the
stockholders, on the same day and at the same place where such annual meeting
shall be held or at such other time and place as the Board of Directors shall
determine. Notice of such meeting need not be given. Such meeting may be held at
any other time or place (within or without the State of Delaware) which shall be
specified in a notice thereof given as hereinafter provided in Section 6 of this
Article III, or in a waiver of notice thereof.
Section 4. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places within or without the State of
Delaware as the Board of Directors may from time to time by resolution
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day. Notice of regular meetings of the Board of Directors
need not be given except as otherwise required by statute or these By-Laws.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board, if any, the
President or any two directors of the Corporation and shall be held at such time
and at such place within or without the State of Delaware as shall be specified
in the notice of meeting or waiver thereof.
Section 6. NOTICE OF MEETINGS. Notice of each special meeting
of the Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 6, in which notice shall be stated the time and place of the meeting.
Notice of each such meeting shall be delivered to each director, either
personally or by telephone, telegraph, facsimile transmission, cable, or
wireless, at least twenty-four hours before the time at which such meeting is to
be held or shall be mailed to each director by first-class mail postage prepaid,
addressed to him at his residence, or usual place of business, at least two days
before the day on which such meeting is to be held. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
objecting, at the beginning of such meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Except as otherwise
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specifically required by these By-Laws, a notice or waiver of notice of any
regular or special meeting of the Board of Directors need not state the purpose
or purposes of such meeting.
Section 7. QUORUM AND MANNER OF ACTING. A majority of the
number of directors constituting the entire Board of Directors shall be present
in person at any meeting of the Board of Directors in order to constitute a
quorum for the transaction of business at such meeting, and, except as otherwise
expressly required by statute or the Certificate of Incorporation, the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a quorum at any
meeting of the Board of Directors, a majority of the directors present, or if no
director is present, the Secretary, may adjourn such meeting to another time and
place, or such meeting, unless it be the annual meeting of the Board of
Directors, need not be held. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally called. Except as provided in Section 11 of this Article
III and Article IV of these By-Laws and as otherwise specifically authorized by
resolution of the Board of Directors, the directors shall act only as a Board of
Directors and the individual directors shall have no power as such.
Section 8. ORGANIZATION. At each meeting of the Board of
Directors, the Chairman of the Board, if any, or, in his absence or inability to
act, the President, or, in his absence or inability to act, another director
chosen by a majority of the directors present, shall act as chairman of the
meeting and preside thereat. The minutes of the meeting shall be recorded by any
officer of the Corporation present and designated by such chairman.
Section 9. RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice of his or her resignation to the
Board of Directors, the Chairman of the Board, the President or the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 10. REMOVAL OF DIRECTORS. Except as otherwise provided
in the Certificate of Incorporation, any director may be removed, at any time,
with or without cause, by the affirmative vote of the holders of a majority of
the outstanding shares of stock entitled to vote for the election of directors
of the Corporation at a meeting of the stockholders called and held for that
purpose.
Section 11. VACANCIES. Except as otherwise required by statute
or by the Certificate of Incorporation, during the intervals between annual
meetings of stockholders, any vacancies and any newly created directorships
resulting from an increase in the authorized number of directors of the
Corporation and vacancies occurring in the Board of Directors for any reason
shall be filled by a majority vote of the directors then in office, or whether
or not a quorum, or by a sole remaining director, at a meeting of the Board of
Directors. Each director chosen to fill a vacancy shall hold office for the
unexpired term in respect of which such vacancy occurred. Each director chosen
to fill a newly created directorship shall hold office for a term expiring at
the next annual meeting. Each director shall hold office for the specified term
and until a successor shall be duly elected and qualified, except in the event
of death, resignation or removal. If there are no directors in office, then a
special meeting of stockholders for the election of directors may be called and
held in the manner provided by statute.
Section 12. COMPENSATION. The Board of Directors or a
committee of the Board designated by it shall have authority to fix the
compensation, if any, including without limitation fees and reimbursement of
expenses, of directors for services to the Corporation in any capacity;
PROVIDED, HOWEVER, that no such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
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Section 13. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 14. PARTICIPATION IN MEETINGS BY TELEPHONE AND OTHER
EQUIPMENT. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
partici pating in the meeting can hear each other, and participation in a
meeting pursuant to this Section shall con stitute presence in person at such
meeting.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 1. EXECUTIVE AND OTHER COMMITTEES. The Board of
Directors may, by a resolution passed by a majority of the whole Board,
designate an Executive Committee, to consist of two or more directors of the
Corporation, and one or more other committees, each such other committee to
consist of two 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. In the absence or disqualification of any member of the Executive
Committee or such other committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. The Executive Committee, while the Board of Directors is not in session
shall have and may exercise, and any such other committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise, all the powers and authority of the Board of Directors 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; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless the resolution or
By-Laws expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Each
committee shall keep written minutes of its proceedings and shall report such
minutes to the Board of Directors when required. All such proceedings shall be
subject to revision or alteration by the Board of Directors; PROVIDED, HOWEVER,
that rights of third parties shall not be prejudiced by such revision or
alteration. The Board of Directors, by action of a majority of the entire Board,
may at any time fill vacancies in, change the membership of, or dissolve any
such committee.
Section 2. EXECUTIVE COMMITTEE: GENERAL. Regular meetings of
the Executive Committee shall be held at such times and places, within or
without the State of Delaware, as a majority of such Committee may from time to
time by resolution determine. Special meetings of the Executive Committee may be
called at the request of any member thereof and may be held at such times and
places, within or without the State of Delaware, as such Committee may from time
to time by resolution determine or as shall be specified in the respective
notices or waivers of notice thereof. Notice of regular meetings of such
Committee need not be given except as otherwise required by statute or these
By-Laws. Notice of each special meeting of such Committee shall be given to each
member of such Committee in the manner provided for in Section 6 of Article III
of these By-Laws. Subject to the provisions of this Article IV, the Executive
Committee, by resolution of a majority of such Committee, shall fix its own
rules of procedure. A majority of the Executive
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Committee shall be present in person at any meeting of the Executive Committee
in order to constitute a quorum for the transaction of business at such meeting,
and the act of a majority of those present at any meeting at which a quorum is
present shall be the act of the Executive Committee. The members of the
Executive Committee shall act only as a committee, and the individual members
shall have no power as such.
Section 3. OTHER COMMITTEES: GENERAL. A majority of any
committee may fix its rules of procedure, determine its action, and fix the time
and place, within or without the State of Delaware, of its meetings, unless the
Board of Directors shall otherwise by resolution provide. Notice of such
meetings shall be given to each member of the committee in the manner provided
for in Section 6 of Article III of these By- Laws. Nothing in this Article IV
shall be deemed to prevent the Board of Directors from appointing one or more
committees consisting in whole or in part of persons who are not directors of
the Corporation; PROVIDED, HOWEVER, that no such committee shall have or may
exercise any authority of the Board of Directors unless any action taken thereby
is approved by a majority of the members thereof, each member of which is a mem
ber of the Board of Directors.
ARTICLE V
OFFICERS
Section 1. NUMBER AND QUALIFICATIONS. The officers of the
Corporation shall be a President, a Vice-President, a Treasurer and a Secretary.
Any two or more offices may be held by the same person. Such officers shall be
elected from time to time by the Board of Directors, each to hold office until
the meeting of the Board following the next annual meeting of the stockholders,
or until his successor shall have been duly elected and shall have qualified, or
until his death, or until he shall have resigned or until he shall have been
removed, as hereinafter provided in these By-Laws. The Board of Directors may
from time to time elect such other officers (including a Chairman of the Board
and one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries)
and such agents as it may deem necessary or desirable for the business of the
Corporation. The Board of Directors may from time to time authorize any
principal officer or committee to appoint, and to prescribe the authority and
duties of, any such subordinate officers or agents. Each of such other officers
and agents shall have such authority, perform such duties, and hold office for
such period, as are provided in these By-Laws or as may be prescribed by the
Board of Directors or by the principal officer or committee appointing such
officer or agent.
Section 2. RESIGNATIONS. Any officer of the Corporation may
resign at any time by giving written notice of his or her resignation to the
Board of Directors, the Chairman of the Board, if any, the President or the
Secretary. Any such resignation shall take effect at the time specified therein
or, if the time when it shall become effective shall not be specified therein,
immediately upon its receipt; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 3. REMOVAL. Any officer or agent of the Corporation
may be removed, either with or without cause, at any time, by the vote of the
majority of the entire Board of Directors at any meeting of the Board, or,
except in the case of an officer or agent elected or appointed by the Board, by
any principal officer or committee upon whom such power of removal may be
conferred by the Board.
Section 4. VACANCIES. A vacancy in any office, whether arising
from death, resignation, disqualification, removal or any other cause, may be
filled for the unexpired portion of the term of the office which shall be
vacant, in the manner prescribed in these By-Laws for the regular election or
appointment to such office.
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Section 5. THE CHAIRMAN OF THE BOARD. The Chairman of the
Board, if elected, shall, if present, preside at all meetings of the
stockholders and the Board of Directors and, in general, shall have such other
powers and perform such other duties as usually pertain to the office of the
Chairman of the Board or as from time to time may be assigned to him by the
Board of Directors. At the discretion of the Board of Directors, the Chairman of
the Board, if elected, may be the chief executive officer of the Corporation
and, if so appointed by the Board of Directors, shall have general and active
supervision and direction over the business and affairs of the Corporation and
over its officers, subject, however, to the control of the Board of Directors.
Section 6. THE PRESIDENT. The President shall be the chief
executive officer of the Corporation and shall have general and active
supervision and direction over the business and affairs of the Corporation and
over its officers, unless the Chairman of the Board, if any, is appointed to
serve as chief executive officer, in which case the President shall be the chief
operating officer of the Corporation and shall have general and active
supervision and direction over the ordinary business operations and affairs of
the Corporation and over its officers, subject, however, to the supervision and
direction of the Chairman of the Board, if any, who is also the chief executive
officer of the Corporation, and to the control of the Board of Dir ectors. He
shall, if present, in the absence or inability to act of the Chairman of the
Board, preside at meetings of the stockholders and at meetings of the Board of
Directors. In general, the President shall have such other powers and perform
such other duties as usually pertain to the office of the President and chief
executive officer or chief operating officer, as the case may be, or as from
time to time may be assigned to him by the Board of Directors or the Chairman of
the Board, if any.
Section 7. VICE PRESIDENTS. Each Vice President shall have
such powers and perform such duties as usually pertain to his office or as from
time to time may be assigned to him by the Board of Directors, the Chairman of
the Board, if any, or the President. If there is more than one Vice President,
they shall be ranked in an order designated by the Board of Directors or failing
such designation, the Vice Presidents will be deemed to be ranked by the Board
of Directors on the order of their election as set forth in the resolution or
resolutions of the Board of Directors providing for their election. During the
absence of the President or his inability to act, the Vice President, or, if
there is more than one Vice President, the highest ranking Vice President
designated or deemed designated by the Board of Directors, shall exercise the
powers and perform the duties of the President, subject to the direction of the
Board of Directors or the Chairman of the Board, if any.
Section 8. TREASURER. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all
the funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and have control of
all books of account of the Corporation;
(c) cause all moneys and other valuables to be deposited to
the credit of the Corporation in such depositaries as may be designated
by the Board of Directors;
(d) receive, and give receipts for, moneys due and payable to
the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the Board of
Directors, taking proper vouchers therefor;
(f) render to the Chairman of the Board, if any, the
President, the Board of Directors or any committee thereof, whenever
required, an account of the financial condition of the Corporation and
of his transactions as Treasurer; and
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(g) in general, have such other powers and perform such other
duties as usually pertain to the office of Treasurer or as from time to
time may be assigned to him by the Board of Directors, the Chairman of
the Board, if any, or the President.
Section 9. ASSISTANT TREASURERS. At the request of the
Treasurer or in the case of his absence or inability to act, the Assistant
Treasurer, or if there be more than one, the Assistant Treasurer designated by
the Board of Directors or, in the absence of such designation, by the Chairman
of the Board, if any, or the President, shall perform all the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Treasurer. In general, each Assistant Treasurer
shall have such other powers and perform such other duties as from time to time
may be assigned to him by the Board of Directors, the Chairman of the Board, if
any, the President or the Treasurer.
Section 10. THE SECRETARY. The Secretary shall:
(a) keep or cause to be kept, in one or more books provided
for the purpose, the minutes of all meetings of the Board of Directors,
of the committees of the Board of Directors and of the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates of
the Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and affix
and attest the seal to all other documents to be executed on behalf of
the Corporation under its seal;
(d) see that the books, reports, statements, certificates
and other documents and records required by law to be kept and filed
are properly kept and filed; and
(e) in general, have such other powers and perform such other
duties as usually pertain to the office of Secretary or as from time to
time may be assigned to him by the Board of Directors, the Chairman of
the Board, if any, or the President.
Section 11. ASSISTANT SECRETARIES. At the request of the
Secretary or in case of his absence or inability to act, the Assistant
Secretary, or if there be more than one, the Assistant Secretary designated by
the Board of Directors or, in the absence of such designation, by the Chairman
of the Board, if any, or the President shall perform all the duties of the
Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary. In general, each Assistant Secretary
shall have such other powers and perform such other duties as from time to time
may be assigned to him by the Board of Directors, the Chairman of the Board, if
any, the President or the Secretary.
Section 12. OFFICERS' BONDS OR OTHER SECURITY. If required by
the Board of Directors, any officer of the Corporation shall give a bond for the
faithful performance of his duties, for such term and in such amount and with
such surety or sureties as the Board may require.
Section 13. COMPENSATION. The compensation of the officers of
the Corporation for their services as such officers shall be fixed from time to
time by the Board of Directors or a committee of the Board designated by it, and
no officer of the Corporation shall be prevented from receiving compensation by
reason of the fact that he is also a director of the Corporation.
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ARTICLE VI
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. CHECKS, DRAFTS, ETC. All checks, drafts, bills of
exchange or other orders for the payment of money out of the funds of the
Corporation, and all notes or other evidences of indebtedness of the Corporation
shall be signed in the name and on behalf of the Corporation by such person or
persons and in such manner as shall from time to time be authorized by the Board
of Directors.
Section 2. DEPOSITS. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as the Board of
Directors may from time to time designate or as may be designated by any officer
or officers of the Corporation to whom such power of designation may from time
to time be delegated by the Board of Directors. For the purpose of deposit and
for the purpose of collection for the account of the Corporation, checks, drafts
and other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation.
Section 3. GENERAL AND SPECIAL BANK ACCOUNTS. The Board of
Directors may from time to time authorize the opening and keeping of general and
special bank accounts with such banks, trust companies or other depositaries as
the Board may designate or as may be designated by any officer or officers of
the Corporation to whom such power of designation may from time to time be
delegated by the Board of Directors. The Board of Directors may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with provisions of these By-Laws, as it may deem expedient.
Section 4. PROXIES IN RESPECT OF SECURITIES OF OTHER
CORPORATIONS. Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, if any, the President or any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation in the name and on behalf of the Corporation to cast
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing in
the name of the Corporation as such holder to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name of or on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.
ARTICLE VII
SHARES AND THEIR TRANSFER; EXAMINATION OF BOOKS
Section 1. STOCK CERTIFICATES. Every holder of stock of the
Corporation shall be entitled to have a certificate, in such form as shall be
approved by the Board of Directors, certifying the number and class of shares of
stock of the Corporation owned by him. The certificates representing shares of
the respective classes of stock shall be numbered in order of their issue and
shall be signed in the name of the Corporation by the Chairman of the Board, if
any, or the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary and sealed with the seal of
the Corporation (which seal may be a facsimile, engraved or printed). Any or all
the signatures on the certificate may be a facsimile. 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,
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it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
Section 2. BOOKS OF ACCOUNT AND RECORD OF STOCKHOLDERS. The
books and records of the Corporation may be kept at such places, within or
without the State of Delaware, as the Board of Directors may from time to time
determine. The stock record books and the blank stock certificate books shall be
kept by the Secretary or by any other officer or agent designated by the Board
of Directors.
Section 3. TRANSFERS OF SHARES. Transfers of shares of stock
of the Corporation shall be made on the stock records of the Corporation only
upon authorization by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with a transfer agent or transfer clerk, and on surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
a duly executed stock transfer power and the payment of all taxes thereon.
Except as otherwise provided by law, the Corporation shall be entitled to
recognize the exclusive right of a person in whose name any share or shares
stand on the record of stockholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to receive dividends or
other distributions, and to vote as such owner, and the Corporation may hold any
such stockholder of record liable for calls and assessments and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest
in any such share or shares on the part of any other person whether or not it
shall have express or other notice thereof. Whenever any transfers of shares
shall be made for collateral security and not absolutely, and both the
transferor and transferee request the Corporation to do so, such fact shall be
stated in the entry of the transfer.
Section 4. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation. It may appoint, or authorize any officer
or officers to appoint, one or more transfer agents or one or more transfer
clerks and one or more registrars and may require all certificates for shares of
stock to bear the signature or signatures of any of them.
Section 5. LOST, DESTROYED OR MUTILATED CERTIFICATES. The
holder of any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction or mutilation of
such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board of Directors may, in its discretion, require such owner
or his legal representatives to give the Corporation and/or any agent of the
Corporation designated by it a bond in such sum, limited or unlimited, and in
such form and with such surety or sureties as the Board of Directors in its
absolute discretion shall determine, to indemnify the Corporation and/or such
agent against any claim that may be made against it on account of the alleged
loss, theft or destruction of any such certifi cate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board of
Directors, in its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the laws of the State of
Delaware.
Section 6. STOCKHOLDER'S RIGHT OF INSPECTION. Any stockholder
of record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof, have the right during the usual hours
for business to inspect for any proper purpose the Corporation's stock ledger, a
list of its stockholders, and its other books and records, and to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably related to
such person's interest as a stockholder. In every instance where an attorney or
other agent shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such other writing
which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the Corporation at its
registered office in the State of Delaware or at its principal place of
business.
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Section 7. FIXING OF RECORD DATE. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. 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 of Directors may fix a new record
date for the adjourned meeting.
ARTICLE VIII
DIVIDENDS
Subject to the provisions of applicable law or of the
Certificate of Incorporation relating thereto, if any, dividends upon the
capital stock of the Corporation may be declared by the Board of Directors at
any regular or special meeting. Dividends may be paid in cash, in property or in
shares of the capital stock of the Corporation, subject to applicable law and
the Certificate of Incorporation.
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, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for re pairing or maintaining any property of the Corporation, or for such other
purpose or purposes as the Board of Directors shall determine to be in the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
Section 1. RIGHT TO INDEMNIFICATION. The Corporation shall, to
the fullest extent permitted by applicable law as then in effect, indemnify any
person (the "Indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or was or is threatened to be made
so involved in any threatened, pending or completed investigation, claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit or proceeding by
or in the right of the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that he is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise (including, without limitation, service with respect
to any employee benefit plan), whether the basis of any such Proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, against all expenses, liability
and loss (including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
actually and reasonably incurred by him in connection with such Proceeding. The
right to indemnification conferred in this Article IX shall include the right to
receive payment in advance of any expenses incurred by the Indemnitee in
connection with such Proceeding, consistent with applicable law as then in
effect. All right to indemnification conferred in this Article IX, including
such right to advance payments and the evidentiary, procedural and other
provisions of this Article IX, shall be a contract right. The Corporation may,
by action of its Board of Directors, provide indemnification
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for employees, agents, attorneys and representatives of the Corporation with up
to the same scope and extent as provided for officers and directors.
Section 2. INSURANCE, CONTRACTS AND FUNDING. The Corporation
may purchase and maintain insurance to protect itself and any person who is, was
or may become an officer, director, employee, agent, attorney or representative
of the Corporation or, at the request of the Corporation, an officer, director,
employee, agent, attorney or representative of another corporation or entity,
against any expense, liability or loss asserted against him or incurred by him
in connection with any Proceeding in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against such expense, liability or loss under the provisions of Article
TENTH of the Certificate of Incorporation or this Article IX or otherwise. The
Corporation may enter into contracts with any director, officer, employee,
agent, attorney or representative of the Corporation, or any person serving as
such at the request of the Corporation for another corporation or entity, in
furtherance of the provisions of this Article IX and may create a trust fund,
grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification of any person entitled thereto.
Section 3. INDEMNIFICATION; NOT EXCLUSIVE RIGHT. The right of
indemnification provided in this Article IX shall not be exclusive of any other
rights to which any person seeking indemnification may otherwise be entitled
under any provision of the Certificate of Incorporation or By-Laws or agreement
or otherwise. The provisions of this Article IX shall inure to the benefit of
the heirs and legal representatives of any person entitled to indemnity under
this Article IX and shall be applicable to all Proceedings, whether arising from
acts or omissions occurring before or after the adoption of this Article IX. No
amendment or repeal of any provision of this Article IX shall remove, abridge or
adversely affect any right of indemnification or any other benefits of the
Indemnitee under the provisions of this Article IX with respect to any
Proceeding involving any act or omission which occurred prior to such amendment.
Section 4. ADVANCEMENT OF EXPENSES; PROCEDURES; PRESUMPTIONS
AND EFFECT OF CERTAIN PROCEEDINGS; REMEDIES. In furtherance, but not in
limitation, of the provisions of the Certificate of Incorporation or the
foregoing provisions of this Article IX, the following procedures, presumptions
and remedies shall apply with respect to advancement of expenses and the right
to indemnification under the Certificate of Incorporation or this Article IX:
(a) ADVANCEMENT OF EXPENSES. All reasonable expenses incurred
by or on behalf of the Indemnitee in connection with any Proceeding
shall be advanced to the Indemnitee by the Corporation within 20 days
after the receipt by the Corporation of a statement or statements from
the Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred
by the Indemnitee and, if required by law at the time of such advance,
shall include or be accompanied by an undertaking by or on behalf of
the Indemnitee to repay the amounts advanced if it should ultimately be
determined that the Indemnitee is not entitled to be indemnified
against such expense pursuant to this Article IX.
(b) PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(i) To obtain indemnification, an Indemnitee shall
submit to the President or Secretary of the Corporation a written
request, including documentation and information as is reasonably
available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination of
the Indemnitee's entitlement to indemnification shall be made not later
than 60 days after receipt by the Corporation of the written request
for indemnification together with the Supporting Documentation. The
President or Secretary of the Corporation shall, promptly upon receipt
of such
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a request for indemnification, advise the Board of Directors in writing
that the Indemnitee has request ed indemnification.
(ii) The Indemnitee's entitlement to indemnification
shall be determined in one of the following ways: (A) by a majority
vote of the Disinterested Directors (as hereinafter defined) (or the
Disinterested Director, if only one); (B) by a written opinion of
Independent Counsel (as hereinafter defined) if (x) a Change of Control
(as hereinafter defined) shall have occurred and the Indemnitee so
requests or (y) there is no Disinterested Director or a majority of the
Disinterested Directors (or the Disinterested Director, if only one) so
directs; (C) by the stockholders of the Corporation (but only if a
majority of the Disinterested Directors (or the Disinterested Director,
if only one) determines that the issue of entitlement to
indemnification should be submitted to the stockholders for their
determination); or (D) as provided in Section 4(c) of this Article IX.
(iii) In the event the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to
Section 4(b)(ii) of this Article IX, a majority of the Disinterested
Directors (or the Disinterested Director, if only one) shall select the
Independent Counsel, but only an Independent Counsel to which the
Indemnitee does not reasonably object; PROVIDED, HOWEVER, that if a
Change of Control shall have occurred, the Indemnitee shall select such
Independent Counsel, but only an Independent Counsel to which the Board
of Directors does not reasonably object.
(c) PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. Except as
otherwise expressly provided in this Article IX, the Indemnitee shall
be presumed to be entitled to indemnification upon submission of a
request for indemnification together with the Supporting Documentation
in accordance with Section 4(b)(i) of this Article IX, and thereafter
the Corporation shall have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the
per son or persons empowered under Section 4(b) of this Article IX to
determine entitlement to indemnification shall not have been appointed
or shall not have made a determination within 60 days after receipt by
the Corporation of the request therefor together with the Supporting
Documentation, the Indemnitee shall be deemed to be entitled to
indemnification. With regard to the right to indemnification for
expenses, if and to the extent that the Indemnitee has been successful
on the merits or otherwise in any Proceeding, or if and to the extent
that the Indemnitee was not a party to the Proceeding or if a
Proceeding was terminated without a determination of liability on the
part of the Indemnitee with respect to any claim, issue or matter
therein or without any payments in settlement or compromise being made
by the Indemnitee with respect to a claim, issue or matter therein, the
Indemnitee shall be deemed to be entitled to indemnification, which
entitlement shall not be diminished by any determination which may be
made pursuant to Sections (4)(b)(ii)(A), (B) or (C). In either case,
the Indemnitee shall be entitled to such indemnification, unless (A)
the Indemnitee misrepresented or failed to disclose a material fact in
making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law, in
either case as finally determined by adjudication or, at the
Indemnitee's sole option, arbitration (as provided in Section 4(d)(i)
of this Article IX). The termination of any Proceeding described in
Section 1 of this Article IX, or of any claim, issue or matter therein,
by judgment, order, settlement or conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, adversely affect
the right of the Indemnitee to indemnification or create any
presumption with respect to any standard of conduct or belief or any
other matter which might form a basis for a determination that the
Indemnitee is not entitled to indemnification.
(d) REMEDIES OF INDEMNITEE.
(i) In the event that a determination is made
pursuant to Section 4(b) of this Article IX that the Indemnitee is not
entitled to indemnification under this Article IX, (A) the Indemnitee
shall be entitled to seek an adjudication of his entitlement to such
indemnification either, at the Indemnitee's sole option, in (x) an
appropriate court of the State of Delaware or any other court of
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competent jurisdiction or (y) an arbitration to be conducted by three
arbitrators (or, if the dispute involves less than $100,000, by a
single arbitrator) pursuant to the rules of the American Arbitration
Association; (B) any such judicial proceedings or arbitration shall be
DE NOVO and the Indemnitee shall not be prejudiced by reason of such
adverse determination; and (C) in any such judicial proceeding or
arbitration the Corporation shall have the burden of proof that the
Indemnitee is not entitled to indemnification under this Article IX.
(ii) If a determination shall have been made or
deemed to have been made, pursuant to Section 4(b) or (c) of this
Article IX, that the Indemnitee is entitled to indemnification, the
Corporation shall be obligated to pay the amounts constituting such
indemnification within five days after such determination has been made
or deemed to have been made and shall be conclusively bound by such
determination, unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or
in the Supporting Documentation or (B) such indemnification is
prohibited by law, in either case as finally determined by adjudication
or, at the Indemnitee's sole option, arbitration (as provided in
Section 4(d)(i) of this Article IX). In the event that (C) advancement
of expenses is not timely made pursuant to Section 4(a) of this Article
IX or (D) payment of indemnification is not made within five days after
a determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Section 4(b) or (c) of this
Article IX, the Indemnitee shall be entitled to seek judicial
enforcement of the Corporation's obligation to pay to the Indemnitee
such advancement of expenses or indemnification. Notwithstanding the
foregoing, the Corporation may bring an action, in an appropriate court
in the State of Delaware or any other court of competent jurisdiction,
contesting the right of the Indemnitee to receive indemnification
hereunder due to the occurrence of an event described in subclause (A)
or (B) of this clause (ii) (a "Disqualifying Event"), PROVIDED,
HOWEVER, that if the Indemnitee shall elect, at his sole option, that
such dispute shall be determined by arbitration (as provided in Section
4(d)(i) of this Article IX), the Corporation shall proceed by such
arbitration. In any such enforcement or other proceeding or action in
which whether a Disqualifying Event has occurred is an issue, the
Corporation shall have the burden of proving the occurrence of such
Disqualifying Event.
(iii) The Corporation shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant
to this Section 4(d) that the procedures and presumptions of this
Article IX are not valid, binding and enforceable and shall stipulate
in any such court or before any such arbitrator or arbitrators that the
Corporation is bound by all the provisions of this Article IX.
(iv) In the event that the Indemnitee, pursuant to
this Article IX, seeks a judicial adjudication of or an award in
arbitration to enforce his rights under, or to recover damages for
breach of, this Article IX, or is otherwise involved in any
adjudication or arbitration with respect to his right to
indemnification, the Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any
expenses actually and reasonably incurred by him if the Indemnitee
prevails in such judicial adjudication or arbitration. If it shall be
determined in such judicial adjudication or arbitration that the
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in connection with such judicial
adjudication or arbitration shall be prorated accordingly.
(e) DEFINITIONS. For purposes of this Section 4:
------------
(i) "Change in Control" means a change in control of
the ultimate corporate parent of the Corporation of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation l4A promulgated under the Securities Exchange Act of 1934
(the "Act"), as such item was in effect on November 1, 1992, whether or
not the Corporation is then subject to such reporting requirement;
provided that, without limitation, such a change in control shall be
deemed to have occurred if (A) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Act) is or
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becomes the "beneficial owner" (as defined in Rule l3d-3 under the
Act), directly or indirectly, of securities of the Corporation
representing 20 percent or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of
at least two-thirds of the members of the Board of Directors in office
immediately prior to such acquisition; (B) the Corporation is a party
to a merger, consolidation, sale of assets or other reorganization, or
a proxy contest, as a consequence of which members of the Board of
Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter;
or (C) during any period of two consecutive years, individuals who at
the beginning of such period consti tuted the Board of Directors
(including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was approved
by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of Directors.
(ii) "Disinterested Director" means a director of the
Corporation who is not or was not a material party to the Proceeding in
respect of which indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a
member of a law firm that neither presently is, nor in the past five
years has been, retained to represent: (A) the Corporation or the
Indemnitee in any matter or (B) any other party to the Proceeding
giving rise to a claim for indemnification under this Article IX.
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would
have a conflict of interest in representing either the Corporation or
the Indemnitee in an action to determine the Indemnitee's rights under
this Article IX.
Section 5. ACTS OF DISINTERESTED DIRECTORS. Disinterested
Directors considering or acting on any indemnification matter under this Article
IX or otherwise may consider or take action as the Board of Directors or may
consider or take action as a committee or individually or otherwise. In the
event Disinterested Directors consider or take action as the Board of Directors,
one-third of the total number of di rectors shall constitute a quorum.
Section 6. SEVERABILITY. If any provision or provisions of
this Article IX shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of the
remaining provisions of this Article IX (including, without limitation, all
portions of any paragraph of this Article IX containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (ii) to the fullest extent possible, the provisions of this Article IX
(including, without limitation, all portions of any paragraph of this Article IX
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
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ARTICLE XI
SEAL
The Board of Directors shall provide a corporate seal, which
shall be circular in form and bear the name of the Corporation and the words and
figures denoting its organization under the laws of the State of Delaware and
the year thereof.
ARTICLE XII
AMENDMENTS
Except as otherwise provided in the Certificate of
Incorporation, these By-Laws may be amended or repealed, or new By-Laws may be
adopted only by action of not less than the holders of a majority of the shares
of stock outstanding and entitled to vote thereon or a majority of the entire
Board of Directors.