BY-LAWS OF REEVES HOLDINGS, INC.
ARTICLE I
Offices
The registered office of the Corporation in the State of Delaware is
located in the City of Wilmington, State of Delaware, and the name of the
registered agent of the Corporation at such office is The Corporation Trust
Company. The Corporation may also have offices at such other places, within
or without the State of Delaware, as the Board of Directors (the "Board") may
from time to time determine.
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 property come before the meeting shall be held in New
York, New York, or at such other place within or without the State of Delaware
as may be specified in the notice of meeting or the waiver thereof on the
third Wednesday in May of each year at 9:00 a.m. or at such other time as
shall be fixed by the Board. If the date so designated shall fall on a legal
holiday, then such meeting shall be held at such place at the same hour on the
next day thereafter not a Saturday, Sunday or legal holiday.
SECTION 2. SPECIAL MEETING. A special meeting of the stockholders of the
Corporation may be called by the President and shall be called by the
President, the Secretary or an Assistant Secretary when directed to do so by
resolution of the Board at a duly convened meeting of the Board, or at the
request in writing of a majority of the Board. Such request shall state the
purpose or purposes of the proposed meeting. Special meetings shall be held
at such place within or without the State of Delaware as may be specified in
the notice of meeting or waiver thereof. Business transacted at all special
meetings shall be confined to the purposes stated in the notice of meeting.
SECTION 3. NOTICE OF MEETINGS. Written notice of every meeting of the
stockholders shall be given by or under the direction of the Secretary or an
Assistant Secretary, either personally or by mail, upon each stockholder of
record entitled
to vote at such meeting, not less than 10 nor more than 60 days before the
meeting. In the event of the death, absence, incapacity or refusal of the
specified officer, notice of a meeting may be given by a person designated by
either the Secretary, the person or persons requesting the meeting or the
Board. If mailed, the notice of a meeting shall be directed to a stockholder
at his address as it appears on the records of the Corporation. The notice
of every meeting of the stockholders shall state the place, date and hour of
the meeting, and the purpose or purposes for which the meeting is called.
SECTION 4. QUORUM. At all meetings of stockholders, the holders of
issued and outstanding stock entitled to vote present in person or by proxy
having a majority of the votes of such stock shall constitute a quorum. If
such quorum is not present, the stockholders present thereat may adjourn the
meeting from time to time without notice, other than the announcement at the
meeting of the date, time and place of the adjourned meeting until a quorum is
present, and thereupon any business may be transacted at the adjourned meeting
which might have been transacted at the meeting as originally called. 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 5. VOTING. At every meeting of the stockholders, except as may
be otherwise provided in the Certificate of Incorporation, every stockholder
of the Corporation entitled to vote thereat shall be entitled to one vote for
each share of stock entitled to vote standing in his name on the books of the
Corporation on the record date as determined in accordance with Article V,
Section 4 of these By-Laws. Directors shall be elected by a plurality of the
votes cast at a meeting of stockholders (at which a quorum is present) by the
holders of shares entitled to vote in the election, except as otherwise
required by law or by the Certificate of Incorporation of the Corporation.
Whenever any corporate action, other than the election of directors, is to be
taken by vote of the stockholders, it shall be authorized by a majority of the
votes cast at a meeting of stockholders (at which a quorum is present) by the
holders of shares entitled to vote thereon (except as otherwise required by
law, the Certificate of Incorporation of the Corporation, these By-Laws, or
any regulations of any security exchange). The stock ledger of the
Corporation shall be the only evidence as to who are the stockholders entitled
to examine such stock ledger, the list required by Article II, Section 9 of
these By-Laws, or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders. Upon the demand of any stockholder
entitled to vote, the vote at any election of directors, or the vote upon any
question before a meeting, shall be by ballot; but
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otherwise the method of voting shall be discretionary with the presiding
officer at the meeting.
SECTION 6. PRESIDING OFFICER AND SECRETARY. At all meetings of the
stockholders, the Chairman of the Board, or if such office be vacant or he be
absent, the President of the Corporation, or in his absence a Vice-President,
or if none be present the appointee of the meeting, shall preside. The
Secretary of the Corporation, or in his absence an Assistant Secretary, or if
none be present the appointee of the Presiding Officer of the meeting, shall
act as Secretary of the meeting.
SECTION 7. PROXIES. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy, but no proxy shall be
voted on after 3 years from its date, unless such proxy provides for a longer
period. Every proxy must be executed in writing by the stockholder himself,
or by his duly authorized attorney, and dated, but need not be sealed,
witnessed or acknowledged. Proxies shall be delivered to the Secretary of the
meeting begins or to the Judges at the meeting.
A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the Corporation
generally.
SECTION 8. INSPECTORS OF ELECTION. At each meeting of the stockholders
at which the vote for directors, or the vote upon the question before the
meeting, is taken by ballot, the polls shall be opened and closed by, and the
proxies and ballots shall be received and taken in charge by, and all
questions touching on the qualifications of voters and the validity of proxies
and the acceptance and rejection of the same shall be decided by two
Inspectors of Election. Such Inspectors may be appointed by the Board before
the meeting, but if no such appointment shall have been made, they shall be
appointed by meeting. If for any reason any Inspector previously appointed
shall fail to attend or refuse to be unable to serve, an Inspector in his
place shall be appointed by the meeting. Any appointment of Inspectors by the
meeting shall be or by per capita vote of the stockholders present and
entitled to vote.
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SECTION 9. LIST OF STOCKHOLDERS. At least 10 days prior to every meeting
of stockholders, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each, shall be
prepared by the Secretary or an Assistant Secretary. Such list shall be open
to examination at a place within the city where the meeting is to be held,
which place shall be specified in the notice of meeting, or, if not so
specified, at the place where the meeting is held and shall be open, during
normal business hours for a period of 10 days prior to the meeting, to the
examination of any stockholder for any purpose germane to the meeting. 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.
SECTION 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Except as may be
otherwise provided in the Certificate of Incorporation, any action required by
statute to be taken at any meeting of stockholders, or any action which may be
taken at any meeting of stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
ARTICLE II
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The number of directors
shall be fixed initially by the incorporator and thereafter such number may be
increased from time to time by the stockholders or by the Board or may be
decreased by the stockholders. Any such decrease shall have the effect of
terminating the term of office of all directors. If such decrease is effected
at a meeting of stockholders, a new Board shall be elected at such meeting or,
if effected by written consent of stockholders, a new Board shall be elected
by the same written consent. Except as provided by law or these By-Laws, the
members of the Board shall be elected at each annual meeting of the
stockholders. If for any reason any annual election of directors shall not be
held on the day designated by these By-Laws, the directors shall cause such
election to be held as soon thereafter as convenient. Except as otherwise
provided in the Certificate of Incorporation or these By-Laws, at each
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meeting of the stockholders for the election of directors at which a quorum
shall be present, the persons (not exceeding the then authorized number of
directors) receiving a plurality of the votes cast shall be elected directors.
Except as otherwise provided by law, the term of office of each director shall
be from the time of his election and qualification until the annual meeting of
stockholders next succeeding his election and until his successor shall have
been duly elected and shall have qualified; PROVIDED, HOWEVER, that any
director may be removed with or without cause before the expiration of his
term by the vote of the holders of issued and outstanding stock entitled to
vote at any special meeting called for the purpose having a majority of the
votes of such stock. A director need not be a stockholder. As used herein,
the term "Whole Board" shall mean the total number of directors authorized at
the time, whether or not any vacancies exist.
SECTION 2. VACANCIES. Any vacancy in the Board caused by death,
resignation, disqualification, removal, an increase in the number of directors
(caused by the Board or otherwise) or any other cause may be filled by a
majority of the directors then in office although less than a quorum or by a
sole remaining director, or by the stockholders. When one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereof to take effect when
such resignation or resignations shall become effective.
SECTION 3. RESIGNATIONS. Any director may resign from his office at any
time by delivering his resignation in writing to the Corporation, and the
acceptance of such resignation, unless required by the terms thereof, shall
not be necessary to make such resignation effective.
SECTION 4. MEETINGS. The Board may hold its meetings in such place or
places within or without the State of Delaware as the Board from time to time
by resolution may determine or as shall be specified in the respective notices
or waivers of notice thereof, and the directors may adopt such rules and
regulations for the conduct of their meetings and the management of the
Corporation not inconsistent with these By-Laws as they may deem proper. The
Board from time to time by resolution may fix a time and place (or varying
times and places) for the annual and other regular meetings of the Board;
PROVIDED that unless a time and place is so fixed for any annual meting of
the Board, the same shall be held immediately following the annual meeting of
the stockholders at the same place at which such meeting shall have been held.
No notice of the annual or other regular meetings of the Board need give.
Other meetings of the Board shall be held whenever called by the Chairman of
the Board or by the President or by one-third of the directors then in office;
and the Secretary or an Assistant Secretary shall give notice of each
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such meeting to each director not later than the day before the day of the
meeting, personally or by mailing, telegraphing, cabling or telephoning such
notice to him at his address as it appears on the books of the Corporation or
by leaving such notice at his residence or usual place of business. No notice
of a meeting need be given if all the directors are present in person. Any
business may be transacted at any meeting of the Board, whether or not
specified in a notice of the meeting.
SECTION 5. MEETING BY CONFERENCE TELEPHONE. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board
or such committee by means of conference telephones or similar communications
equipment by which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this paragraph shall constitute
presence in person at such meeting. The Chairman or the Secretary of the
meeting shall make sure that all persons participating in the meeting (i) can
hear each other and (ii) understand that their participation will constitute a
meeting of the Board or such committee.
SECTION 6. UNANIMOUS CONSENT OF DIRECTORS IN LIEU OF MEETING. Any action
required or permitted to be taken at any meeting of the Board may be taken
without a meeting, if a written consent thereto is signed by all members of
the Board, and such written consent is filed with the minutes of proceedings
of the Board.
SECTION 7. QUORUM. One-third of the Whole Board shall constitute a
quorum for the transaction of business. If there be less than a quorum at any
meeting of the Board, a majority of those present (or if only one be present,
then that one) may adjourn the meeting from time to time, and no further
notice thereof need be given other than announcement at the meeting which
shall be so adjourned of the time of, and the place to which, the meeting is
adjourned. The act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board, except as may be
otherwise specifically provided by law or by the Certificate of Incorporation
or by these By-Laws.
SECTION 8. COMPENSATION OF DIRECTORS. The Board shall have authority to
fix the compensation of directors for acting in either that capacity or any
other capacity.
SECTION 9. COMMITTEES. The Board may, by resolution passed by a majority
of the Whole Board, from time to time designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. To the extent provided in any such resolution, any such
committee shall have and may exercise all
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the powers and authority of the Board in the management of the business and
affairs of the Corporation, including the power to authorize the seal of the
Corporation to be affixed to all papers which may require it, and the power
and authority to declare dividends and to authorize the issuance of stock;
PROVIDED, HOWEVER, that no such committee shall have any power or
authority to amend the Certificate of Incorporation, to adopt any agreement of
merger or consolidation, to recommend to the stockholders the sale, lease or
exchange of all or substantially all of the assets and properties of the
Corporation, to recommend to the stockholders a dissolution of the Corporation
or revocation of a dissolution or to amend these By-Laws. Any action required
or permitted to be taken at any meeting of a committee may be taken without a
meeting, if a written consent thereto is signed by all members of such
committee, and such written consent is filed with the minutes of proceedings
of the committee.
ARTICLE IV
OFFICERS AND AGENTS
SECTION 1. GENERAL PROVISIONS. The officers of the Corporation shall be
a President, a Treasurer and a Secretary, one or more Vice-Presidents, one or
more Assistant Vice-Presidents, one or more Assistant Treasurers and one or
more Assistant Secretaries, all of whom shall be appointed by the Board as
soon as may be practicable after the election of directors in each year. Any
two offices may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity if such
instrument is required by law or by these By-Laws to be executed, acknowledged
or verified by any two or more officers. Each of such officers shall serve
until the annual meeting of the Board next succeeding his appointment and
until his successor shall have been chosen and shall have qualified. The
Board may appoint such officers, agents and employees as it may deem necessary
or proper, who shall respectively have such authority and perform such duties
as may from time to time be prescribed by the Board. All officers, agents and
employees appointed by the Board shall be subject to removal at any time by
the affirmative vote of a majority of the Whole Board. Other agents and
employees may be removed at any time by the Board, by the officer appointing
them, or by any other superior officer upon whom such power of removal may be
conferred by the Board. The salaries of the officers of the Corporation shall
be fixed by the Board, but this power may be delegated to any officer. The
Corporation may secure the fidelity of any or all of its officers or agents by
bond or otherwise.
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SECTION 2. THE CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors, who shall be a director, shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors. He shall perform
such other duties as he may be assigned from time to time by the Board of
Directors.
SECTION 3. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall have general charge of, and shall direct and supervise, the business and
affairs of the Corporation whenever the Board of Directors is not in session.
SECTION 4. THE PRESIDENT. The President, who may be a director, shall
perform such duties as may be assigned to him by the Board of Directors. In
the event that the President is a director and in the event of disability or
absence of the Chairman of the Board, the President shall perform the duties
of the Chairman of the Board, including presiding at meetings of stockholders
and directors. The President may be Chief Administrative Officer of the
Corporation. The Chief Administrative Officer shall have general charge of,
and shall direct and supervise, the operation of its business, subject to the
control and direction of the Chairman of the Board and the Board of Directors.
He shall see that all orders and resolutions of the Board of Directors are
carried into effect and shall perform such other duties as he may be assigned
from time to time by the Board of Directors. When elected by the Board of
Directors as Chief Executive Officer, he shall perform the duties of the Chief
Executive Officer as stated in Section 3 above. In the event the President is
elected as Chief Executive Officer, the Board of Directors may elect another
Executive Officer as the Chief Administrative Officer.
SECTION 5. VICE-PRESIDENTS. Each Vice-President shall have such powers
and perform such duties as the Board, the Chairman of the Board or the
President may from time to time prescribe, and shall perform such other duties
as may be prescribed in these By-Laws. In the absence or inability to act of
the President, the Vice-President next in order as designated by the Board or,
in the absence of such designation, senior in length of service in such
capacity, who shall be present and able to act, shall perform all the duties
and may exercise any of the powers of the President, subject to the control of
the Board. The performance of any duty by a Vice-President shall be
conclusive evidence of his power to act.
SECTION 6. THE TREASURER. The Treasurer shall have the care and custody
of all funds and securities of the Corporation which may come into his hands
and shall deposit the same to the credit of the Corporation in such bank or
banks or other depository or depositories as the Board may designate. He may
endorse all commercial documents requiring endorsements for or on behalf of
the Corporation and may sign all receipts and vouchers for payments made to
the Corporation. He shall render
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an account of his transactions to the Board as often as it shall require the
same, shall at all reasonable times exhibit his books and accounts to any
director and shall cause to be entered regularly in books kept for that
purpose full and accurate account of all moneys received and disbursed by him
on account of the Corporation. He shall, if required by the Board, give the
Corporation a bond in such sums and with such sureties as shall be
satisfactory to the Board, conditioned upon the faithful performance of his
duties and for the restoration to the Corporation in case of his death,
resignation, retirement or removal from office of all books, papers, vouchers,
money and other property of whatever kind in his possession, or under his
control, belonging to the Corporation. He shall have such further powers and
duties as are incident to the position of Treasurer, subject to the control of
the Board.
SECTION 7. THE SECRETARY. The Secretary shall record the proceedings of
meetings of the Board and of the stockholders in a book kept for that purpose
and shall attend to the giving and serving of all notices of the Corporation.
He shall have custody of the seal of the Corporation and shall affix the seal
to all certificates of shares of stock of the Corporation (if required by the
form of such certificates) and to such other papers or documents as may be
proper and, when the seal is so affixed, he shall attest the same by his
signature wherever required. He shall have charge of the stock certificate
book, transfer book and stock ledger, and such other books and papers as the
Board may direct. He shall, in general, perform all duties of Secretary,
subject to the control of the Board.
SECTION 8. ASSISTANT TREASURERS. In the absence or inability of the
Treasurer to act, any Assistant Treasurer may perform all the duties and
exercise all of the powers of the Treasurer, subject to the control of the
Board. The performance of any such duty shall be conclusive evidence of this
power to act. An Assistant Treasurer shall also perform such other duties as
the Treasurer or the Board may from time to time assign to him.
SECTION 9. ASSISTANT SECRETARIES. In the absence or inability of the
Secretary to act, any Assistant Secretary may perform all the duties and
exercise all the powers of the Secretary, subject to the control of the Board.
The performance of any such duty shall be conclusive evidence of his power to
act. An Assistant Secretary shall also perform such other duties as the
Secretary or the Board may from time to time assign to him.
SECTION 10. OTHER OFFICERS. Other officers shall perform such duties and
have such powers as may from time to time be assigned to them by the Board.
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SECTION 11. DELEGATION OF DUTIES. In case of the absence of any officer
of the Corporation, or for any other reason that the Board may deem
sufficient, the Board may confer, for the time being, the powers or duties, or
any of them, of such officer upon any other officer, or upon any director.
SECTION 12. PROXIES IN RESPECT OF SECURITIES OF OTHER CORPORATIONS.
Unless otherwise provided by resolution adopted by the Board, the President or
any Vice-President may from time to time appoint an attorney or attorneys or
an agent or agents to exercise in the name and on behalf of the Corporation
the powers and rights which the Corporation may have as the holder of stock or
other securities in any other corporation to vote or to consent in respect of
such stock or other securities, and the President or any Vice-President may
instruct the person or persons so appointed as to the manner of exercising
such powers and rights, and the President or any Vice-President may execute or
cause to be executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, all such written proxies, powers of attorney
or other written instruments as he may deem necessary in order that the
Corporation may exercise such powers and rights.
ARTICLE V
CAPITAL STOCK
SECTION 1. CERTIFICATE FOR SHARES. Certificates for shares of stock of
the Corporation certifying the number and class of shares owned shall be
issued to each stockholder in such form, not inconsistent with the Certificate
of Incorporation and these By-Laws, as shall be approved by the Board. The
certificates for the shares of each class shall be numbered and registered in
the order in which they are issued and shall be signed by the Chairman of the
Board or the President or a Vice-President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of
the signatures on a 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, 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. All certificates exchanged or returned to the
Corporation shall be cancelled.
SECTION 2. TRANSFER OF SHARES OF STOCK. Transfers of shares shall be
made only upon the books of the Corporation by the holder, in person or by his
attorney lawfully constituted in writing, and on the surrender of the
certificate or certificates for such shares properly assigned. The Board
shall have the
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power to make all such rules and regulations, not inconsistent with the
Certificate of Incorporation and these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board, in its
discretion, may issue a new certificate of stock in place of any certificate
theretofore issued and alleged to have been lost, stolen or destroyed, and may
require the owner of any certificate of stock alleged to have been lost,
stolen or destroyed, or his legal representatives, to give the Corporation a
bond in such sum as the Board may direct, to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any certificate or the issuance of such new certificate.
Proper evidence of such loss, theft or destruction shall be procured, if
required, by the Board. The Board in its discretion may refuse to issue such
new certificate, save upon the order of some court having jurisdiction in such
matters.
SECTION 4. 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 of 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 may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. If no record
date is fixed:
(a) 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 date 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.
(b) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the Board is necessary, shall be the day on which the first
written consent is expressed.
(c) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
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A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the
adjourned meeting.
ARTICLE VI
INTERESTED DIRECTORS AND OFFICERS
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board
or committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if
(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be
less than a quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board, a committee
thereof or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board or of a committee which authorizes the
contract or transaction.
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ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Corporation shall, to the fullest extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators thereof) who was or is made, or threatened to be made, a party
to an action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether involving any actual or alleged breach of duty, neglect
or error, any accountability, or any actual or alleged misstatement,
misleading statement or other act or omission and whether brought or
threatened in any court or administrative or legislative body or agency,
including an action by or in the right of the Corporation to procure a
judgment in its favor and an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership,
joint venture, trust, employee benefit plan or other enterprise, which any
director or officer of the Corporation is serving or served in any capacity at
the request of the Corporation, by reason of the fact that he, his testator or
intestate is or was a director or officer of the Corporation, or is serving or
served such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against judgments, fines,
amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, incurred therein or in any appeal thereof.
SECTION 2. The Corporation shall indemnify other persons and reimburse the
expenses thereof, to the extent required by applicable law, and may indemnify
any other person to whom the Corporation is permitted to provide
indemnification or the advancement of expenses, whether pursuant to rights
granted pursuant to, or provided by, the Delaware General Corporation Law or
otherwise.
SECTION 3. The Corporation shall, from time to time, reimburse or advance
to any person referred to in Section 1 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action,
suit or proceeding referred to in Section 1, upon receipt of a written
undertaking by or on behalf of such person to repay such amount(s) if a
judgment or other final adjudication adverse to the director or officer
establishes that (i) his acts were committed in bad faith or were the result
of active and deliberate dishonesty and, in either case, were material to the
cause of action so adjudicated, (ii) he personally gained in fact a financial
profit or other advantage to which he was not legally entitled, or (iii) his
conduct was otherwise of a character such that Delaware law would require that
such amount(s) be repaid.
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SECTION 4. Any director or officer of the Corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the
election of its directors is held by the Corporation, or (ii) any employee
benefit plan of the Corporation or any corporation referred in clause (i), in
any capacity shall be deemed to be doing so at the request of the Corporation.
SECTION 5. Any person entitled to be indemnified or to the reimbursement
or advancement of expenses as a matter of right pursuant to this Article may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action, suit or
proceeding, to the extent permitted by applicable law, or on the basis of the
applicable law in effect at the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Corporation and the director or officer, (ii) is intended to be retroactive
and shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Corporation
within thirty days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting
such claim. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
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ARTICLE VIII
SEAL
The seal of the Corporation shall be circular in form and shall contain the
name of the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware" inscribed thereon. The seal may be affixed to
any instrument by causing it, or a facsimile thereof, to be impressed or
otherwise reproduced thereon.
ARTICLE IX
WAIVER
Whenever any notice whatsoever is required to be given by statute, or under
the provisions of the Certificate of Incorporation or these By-Laws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
Attendance of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a 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. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors
need be specified in any written waiver of notice.
ARTICLE X
CHECKS, NOTES, DRAFTS, ETC.
Checks, notes, drafts, acceptances, bills of exchange and other orders or
obligations for the payment of money shall be signed by such officer or
officers or person or persons as the Board shall from time to time determine.
ARTICLE XI
AMENDMENTS
These By-Laws or any of them may be amended or repealed, and new By-Laws
may be adopted (a) by the stockholders, at any annual meeting, or at any special
meeting called for that purpose, by the vote of the holders of issued and
outstanding stock entitled to vote thereat having a majority of the votes of
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such stock, or (b) by the Board at any duly convened meeting by a majority
vote of the Whole Board, but any such action of the Board may be amended or
repealed by the stockholders at any annual meeting or any special meeting
called for that purpose; PROVIDED, HOWEVER, that no amendment may be made
which will conflict with any provision of law or of the Certificate of
Incorporation.
ARTICLE XII
RIGHTS OF STOCKHOLDERS UNDER CERTIFICATE OF INCORPORATION
All provisions of these By-Laws are subject to the provisions of the
Certificate of Incorporation and in the event of any inconsistency, the
provisions of the Certificate of Incorporation shall prevail. Without
limiting the foregoing, nothing in these By-Laws shall affect or limit the
rights of any stockholder provided for in the Certificate of Incorporation.
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