ADVANCED AERODYNAMICS & STRUCTURES, INC.
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B Y L A W S
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ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. 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. All meetings of the stockholders for the election of directors
shall be held at the principal executive office of the corporation in the City
of Long Beach, State of California, or at such place as may be fixed from time
to time by the board of directors, or at such other place either within or
without the State of Delaware as shall be designated from time to time by the
board of directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 1997,
shall be held on the first day of the third month following close of the
corporation's fiscal year (but if such day is a legal holiday, then on the next
succeeding business day) at the hour of 2:00 p.m. Pacific Time, or shall be held
at such date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect by
plurality vote, a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
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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 4. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or by the chairman of the board, or by the president, or at the
request in writing of stockholders owning at least ten percent of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 5. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 6. Written notice of any meeting of stockholders stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting. Any notice of stockholders' meeting or report to stockholders
shall be deemed to have been given at the time when delivered personally or
deposited in the mail (first class, postage pre-paid) or sent by other means of
written communication. An affidavit of mailing of any notice or report in
accordance with the provisions of the General Corporation Law of Delaware
(DGCL), executed by the Secretary, assistant secretary or any transfer agent,
shall be prima facie evidence of the giving of the notice or report.
Section 7. Upon request in writing, delivered to such officers by any
persons entitled to call a meeting of stockholders, it shall be the duty of the
chairman of the board, the president, a vice president or the secretary, to
cause notice to be given to the stockholders entitled to vote that a meeting
will be held at a time requested by the person or persons calling the meeting,
not less than thirty-five (35) nor more than sixty (60) days after receipt of
the request. If such notice shall not be given within twenty (20) days after
the date of receipt of such request, the person of persons entitled to call the
meeting may give notice of the meeting in the manner provided in Section 8 of
Article II of these Bylaws.
Section 8. Notice of each annual or special meeting of stockholders shall
be given in writing and shall specify the place, the date and the hour of the
meeting, and (1) in the case of a special meeting, the general nature of the
business to be transacted at the meeting, or (2) in the case of the annual
meeting, those matters which the board of directors, at the time of the mailing
of the notice, intends to present for action by the stockholders, but, any
proper matter may be presented at the annual meeting for such action.
Section 9. Notice of a stockholders' meeting or any report to he
stockholders shall be given either personally, or by sending a copy thereof
through the mail, or by telegram, or by other means of written communication,
charges prepaid, to the stockholder's address appearing on the
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books of the corporation, or given by the stockholder to the corporation for the
purposes of notice; or, if no such address appears or is given, notice shall be
deemed to have been given if addressed to the stockholder at the place where the
principal executive office of the corporation is located or if published at
least once in a newspaper having general circulation in the county in which the
principal executive office is located. If any notice or report addressed to the
stockholder at the address of such stockholder appearing on the books of the
corporation is returned to the corporation by the United States Postal Service
marked to indicate that the United States Postal Service is unable to deliver
the notice or report to the stockholder at such address, all future notices or
reports shall be deemed to have been duly given without further mailing if the
same shall be available for the stockholder upon written demand of the
stockholder at the principal executive office of the corporation for a period of
one year from the date of the giving of the notice or report to all other
stockholders.
Section 10. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. Whenever under the DGCL, shares are disqualified from voting on
any matter, they shall not be considered outstanding for the determination of a
quorum at any meeting to act upon that matter. The stockholders present at a
duly called or held meeting at which a quorum is present may continue to
transact business until adjournment notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 11. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 12. Unless otherwise provided in the certificate of incorporation
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but in the election of directors, cumulative
voting shall prevail, that is to say, each stockholder shall have the right to
cast as many votes in the aggregate as shall equal the number of voting shares
so held by him, multiplied by the number of directors to be elected at such
election, and he may cast the whole
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number of such votes for one or more candidates. Directors shall not be elected
in any other manner, unless such cumulative voting be unanimously waived by all
stockholders present, in person or by proxy, and such waiver is permitted by
law. No proxy shall be voted on after three years from its date, unless the
proxy provides for a longer period.
Section 13. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, 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.
Section 14. The stockholders shall have the power by a vote of the holders
of shares at any regular meeting or special meeting expressly called for that
purpose, to remove any director from office with or without cause. Such meeting
shall be held at any place prescribed by law or at any other place which may be
permissible under law, and which is designated in the notice of the special
meeting. If less than the entire board is to be removed, no one of the
directors may be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
board of directors.
ARTICLE III
DIRECTORS
Section 1. Each director shall be a natural person who is at least twenty-
one years of age. A director need not be a stockholder, a citizen of the United
States, or a resident of the State of Delaware unless required by law or the
Certificate of Incorporation.
Section 2. The number of directors which shall constitute the whole board
shall be not less than three (3) nor more than seven (7). The first board shall
consist of five (5) directors. Thereafter, within the limits above specified,
the number of directors shall be determined by resolution of the board of
directors or by a majority of the outstanding shares of the corporation. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 3 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 3. Any director may resign effective upon giving written notice to
the chairman of the board, the president, the secretary or the board of
directors of the corporation, unless the notice specifies a later time for
effectiveness of such resignation. If a resignation of a director is
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effective at a future time, a successor may be elected to take office when the
resignation becomes effective.
Section 4. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 5. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 6. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 7. Immediately following each annual meeting of the stockholders,
the newly elected board of directors shall hold a regular meeting at the place
where said annual meeting has been held or at such other place as shall be fixed
by the board of directors. No notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event such meeting is not held at the time and
place so fixed by the board of directors, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 8. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 9. Special meetings of the board may be called by the president on
five (5) days' notice delivered by mail or 48 hours' notice delivered
personally, by telephone or by facsimile communication. Special meetings shall
be called by the chairman of the board or president, or
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by the president or secretary in like manner and in like notice on the written
request of any two directors.
Section 10. Notice of a meeting need not be given to any director who
signs a written waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. No director who so protests shall be
considered present at any such meeting. The transactions of any meeting of the
board of directors, however called and noticed or wherever held, are as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present, and if, either before or after the meeting, each of the directors not
present (including each director who protested lack of notice) signs a written
waiver of notice, a consent to holding the meeting or an approval of the minutes
thereof. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 11. At all meetings a majority of the board of directors shall
constitute a quorum for the transaction of business and 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 of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, so long as any action taken is approved by at least a
majority of the required quorum for such meeting. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present; provided, however,
if the meeting is adjourned for more than two days, at least two (2) days'
notice by mail or 24 hours' notice delivered personally or by telephone or
telegraph, stating the time and place at which the meeting will reconvene, shall
be given to each director who was not present at the time of the adjournment.
Section 12. Unless otherwise restricted by the certificate of
incorporation or these bylaws, 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 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
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COMMITTEES OF DIRECTORS
Section 14. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board 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 a member of a committee, 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.
Any such 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, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation) 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 bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 15. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 16. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any
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other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
REMOVAL OF DIRECTORS
Section 17. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by facsimile telecommunication.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a chairman of the board or a president, or both, a
secretary and a chief financial officer. The board of directors may also choose
one or more vice-presidents, and one or more assistant secretaries and assistant
financial officers. Any number of offices may be held by the same person,
unless the certificate of incorporation or these bylaws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a chairman of the board or a president, or
both, a secretary and a chief financial officer.
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Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors, but this power may, unless prohibited
by law, be delegated by the board to the chairman of the board (if any) or to
the president (except as to their own compensation), or to a committee.
Salaries and compensation of all other appointed officers and agents, and
employees of the corporation, may be fixed, increased or decreased by the board
of directors or a committee thereof, but until action is taken with respect
thereto by the board of directors or a committee thereof, the same may be fixed,
increased or decreased by the chairman of the board, the president or by such
other officer or officers as may be empowered by the board of directors or a
committee thereof to do.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors. Any officer may resign
at any time upon written notice to the corporation without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
CHAIRMAN OF THE BOARD
Section 6. The chairman of the board, if there be such officer, shall, if
present, preside at all meetings of the board of directors and shall exercise
and perform such other powers and duties as may be assigned from time to time to
the chairman of the board by the board of directors. Whenever there is no
president of the corporation, the chairman of the board shall have the powers
and duties of the president.
THE PRESIDENT
Section 7. Subject to such supervisory powers, if any, as may be given by
the board of directors to the chairman of the board, if there be such an
officer, the president shall be the general manager and chief executive officer
of the corporation, shall preside at all meetings of the stockholders and,
provided the president is also a director, in the absence of the chairman of the
board, if there be such an officer, the president shall preside at all meetings
of the board of directors. The president shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
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Section 8. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
Section 9. The president, when authorized to do so by the board, may
execute powers of attorney form, for, and in the name of the corporation, to
such proper person or persons as he may deem fit, in order that thereby the
business of the corporation may be furthered or action taken as may be deemed by
him necessary or advisable in furtherance of the interests of the corporation.
Section 10. The president shall, unless the board otherwise provides, be
ex officio a member of all standing committees. The president shall have such
other or further duties and authority as may be prescribed elsewhere in these
bylaws or form time to time by the board of directors, and the board may from
time to time divide the responsibilities, duties, and authority between them to
such extent as it may deem advisable.
THE VICE-PRESIDENTS
Section 11. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 12. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
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Section 13. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
CHIEF FINANCIAL OFFICER AND ASSISTANT FINANCIAL OFFICERS
Section 14. The chief financial officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 15. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 16. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office 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.
Section 17. The assistant financial officer, or if there shall be more
than one, the assistant financial officers, in the order determined by the board
of directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the chief financial officer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the chief financial officer and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
ADDITIONAL DUTIES
Section 18. In addition to the foregoing powers and duties specifically
prescribed for the respective officers, the board of directors may from time to
time impose or confer upon any of the officers such additional duties and powers
as the board of directors may see fit, and the board of directors may from time
to time impose or confer any or all of the foregoing duties and powers
specifically prescribed for any officer upon any other officer or officers.
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ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The corporation shall not issue shares of stock except for
money paid, labor done or property actually received; provided, however, that
shares may be issued in consideration of valid bona fide antecedent debts. No
note or obligation given by any stockholder, whether secured by deed of trust,
mortgage or otherwise shall be considered as payment of any part of any share or
shares.
Section 2. The certificates for shares of stock of the corporation
shall be numbered, shall be in such form as may be prescribed by the board of
directors in conformity with law, and shall be entered in the stock books of the
corporation or association to whom each certificate is issued. Each certificate
shall have printed, typed or written thereon the name of the person, firm,
partnership, corporation or association to whom it is issued, and number of
shares represented thereby and shall be signed by the chairman of the board (if
any) or the president or a vice president, and the treasurer or an assistant
treasurer or the secretary or an assistant secretary of the corporation and
sealed with the seal of the corporation, which seal may be facsimile, engraved
or printed. If the corporation has a registrar, a transfer agent, or a transfer
clerk who actually signs such certificates, the signature of any of the other
officers above mentioned may be facsimile, engraved or printed. In case any
such officer who has signed or whose shall have ceased to be such officer before
such certificate is issued, such certificate may nevertheless be issued by the
corporation with the same effect as if such officer were an officer at the date
of its issue.
LOST CERTIFICATES
Section 3. In case of the loss or destruction of any certificate for
shares of stock of the corporation, upon due proof of the registered owner
thereof or his representatives, by affidavit of such loss or otherwise, the
president and secretary may issue a duplicate certificate (plainly marked
"duplicate") in its place, upon the corporation being fully indemnified
therefor. Either of such officer may request the posting of an indemnity bond
in favor of the corporation whenever and to the extent that they deem
appropriate as a precondition to the issuance of any duplicate certificate.
TRANSFER OF STOCK
Section 4. Transfers of shares of stock shall be made on the stock record
or transfer books of the corporation only by the person named in the stock
certificate, or by his attorney lawfully constituted in writing, and upon
surrender of the certificate therefor. The stock record book and other transfer
records shall be in the possession of the secretary (or other person appointed
and empowered by the board to do so) or of a transfer agent or clerk for the
corporation. The
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corporation, by resolution of the board, may from time to time appoint a
transfer agent, and, if desired, a registrar, under such arrangements and upon
such terms and conditions as the board deems advisable; but until and unless the
board appoints some other person, firm or corporation as its transfer agent (and
upon the revocation of any such appointment, thereafter until a new appointment
is similarly made) the secretary of the corporation (or other person appointed
and empowered by the board) shall be the transfer agent or clerk of the
corporation, without the necessity of any formal action of the board, and the
secretary or other person shall perform all of the duties thereof.
FIXING RECORD DATE
Section 5. 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. If the board of directors does not set a record date for the
determination of the stockholders entitled to notice of, and to vote at, the
meeting, and any adjournment of the meeting, the record date shall be the date
that is twenty days previous to the meeting; except that, if prior to the
meeting written waivers of notice of the meeting are signed and delivered to the
corporation by all of the stockholders of record at the time the meeting is
convened, only the stockholders who are stockholders of record at the time the
meeting is convened shall be entitled to vote at the meeting, and any
adjournment of the meeting.
FRACTIONAL SHARE INTEREST
Section 6. The corporation may issue fractions of a share and it may issue
a certificate for a fractional share, or by action of the board of directors,
may issue in lieu thereof scrip or other evidence of ownership which shall
entitle the holder to receive a certificate for a full share upon the surrender
of such scrip or other evidence of ownership aggregating a full share. A
certificate for a fractional share shall (but scrip or other evidence of
ownership shall not, unless otherwise provided by resolution of the board of
directors) entitle the holder to all of the rights of a stockholder, including
without limitation the right to exercise any voting right, or to receive
dividends thereon or to participate in any of the assets of the corporation in
the event of liquidation. The board of directors may cause such scrip or
evidence of ownership (other than a certificate for a fractional share) to be
issued subject to the condition that the shares for which such scrip or evidence
of ownership is exchangeable may be sold by the corporation and the
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proceeds thereof distributed to the holders of such scrip or evidence of
ownership, or subject to any other condition which the board of directors may
deem advisable.
REGISTERED STOCKHOLDERS
Section 7. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who 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 (including the heirs, personal
representatives, or estate of such person) shall be indemnified by the
corporation as a matter of right to the full extent permitted or authorized by
the laws of the State of Delaware, as now in effect and as hereafter amended,
against any liability, judgment, fine, amount paid in settlement, cost and
expense (including attorneys' fees) asserted or threatened against and incurred
by such person (other than in an action by or in right of the corporation) in
his capacity as or arising out of his status as a director or officer of the
corporation or, if serving at the request of the corporation, as a director or
officer of another corporation, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had no
reason to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, he had no reason to
believe his conduct was unlawful.
Section 2. The corporation shall also indemnify any person who was or is a
party, or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is nor was a director or
officer of the corporation or, if serving at the request of the corporation, as
a director or officer of another corporation, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation. Notwithstanding the foregoing, no such indemnification shall
be
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made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation, unless, and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper.
Section 3. The indemnification provided by this Article shall not be
exclusive of any other rights to which those indemnified may be entitled under
any other by-law provision or under any agreement, vote or stockholders or
disinterested directors or otherwise, and shall not limit in any way right which
the corporation may have to make different or further indemnifications with
respect to the same or different persons or classes of persons.
Section 4. Any indemnification provided by this Article (unless ordered by
a Court) shall be made by the corporation only upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth herein. Such
determination shall be made: (1) by the board of directors upon a majority vote
of a quorum consisting of directors who were not parties to such action, suit or
proceeding; or (2) if such a quorum is not obtainable, or even if so obtainable,
a majority of directors who were not parties to such action, suit or proceeding
so directs, by independent legal counsel in a written opinion; or (3) by the
stockholders.
Section 5. Expenses incurred by an officer or director of the corporation
in defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding, as authorized in the manner set forth in the immediately preceding
paragraph, upon receipt of a written promise by or on behalf of the director or
officer to repay such amount in the event it shall ultimately be determined that
he is not entitled to be indemnified by the corporation under the provisions of
this Article.
Section 6. The corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the corporation or, if
serving at the request of the corporation, who is or was serving as a director
or officer of another corporation, against any liability asserted against him
and incurred by him 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 liability under the provisions of this Article.
Section 7. No person shall be liable to the corporation for any loss,
damage, liability or expense suffered by it on account of any action taken or
omitted to be taken by him as a director or officer of the corporation or of any
other corporation which he serves as a director or officer at the request of the
corporation, if such person (i) exercised the same degree of care and skill as a
prudent man would have exercised under the circumstances in the conduct of his
own affairs, or (ii) took or omitted to take such action in reliance upon advice
of counsel for the corporation, or of such other corporation, which he had no
reasonable grounds to disbelieve.
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Section 8. To the extent that the foregoing provisions concerning
indemnification and liability conflict with any provisions of the Certificate of
Incorporation, the said Certificate shall control.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
EXECUTION OF CONTRACTS
Section 3. The board of directors, except as in these bylaws otherwise
provided, may authorize any officer or officers or agent or agents to enter into
any contract or execute any instrument in the name of and on behalf of the
corporation. Such authority may be generally, or confined to specific
instances. Unless so authorized by the board of directors, no officer, agent or
employee shall have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit, or to render it liable for any
purpose or in any amount; provided, however, that nothing contained in this
section 3 shall be construed to prevent any officer of the corporation from
performing his regular duties in the ordinary course of business pursuant to the
authority granted to said officer by Article V of these Bylaws.
Section 4. All shares of any other corporation standing in the name of
this corporation shall be voted, represented, and all rights incidental thereto
exercised as directed by written consent or resolution of the board of directors
expressly referring thereto. In general, such rights shall be delegated by the
board of directors, under express instructions from time to time as to such
exercise thereof, the president, or any vice president, and the secretary or any
assistant secretary of this corporation, or any other person expressly appointed
by the board of directors. Such authority may be exercised by the designated
officers in person, or by any other person authorized so to do by proxy, or
power of attorney, duly executed by such officers.
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TRANSFER AGENTS AND REGISTRARS
Section 5. The board of directors may appoint one or more transfer agents
or transfer clerks, and one or more registrars, who may be the same person, and
may be the secretary of the corporation, or an incorporated bank or trust
company, either domestic or foreign, who shall be appointed at such times and
places as the requirements of the corporation may necessitate and the board of
directors may designate.
ANNUAL STATEMENT
Section 6. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 7. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 8. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
SEAL
Section 9. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
FIXING OF CAPITAL, TRANSFER OF SURPLUS
Section 10. Except as may be specifically otherwise provided in the
Articles of Incorporation, the board of directors is expressly empowered to
exercise all authority conferred upon it or the corporation by any law or
statute, and in conformity therewith, relative to:
1. The determination of what part of the consideration received for
shares of the corporation shall be capital;
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2. Increasing capital;
3. Transferring surplus to capital;
4. The consideration to be received by the corporation for its
shares; and
5. All similar or related matters;
provided that any concurrent action or consent by or of the corporation and its
stockholders required to be taken or given pursuant to law, shall be duly taken
or given in connection therewith.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new bylaws
may be adopted by the stockholders or by the board of directors, when such power
is conferred upon the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new bylaws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal bylaws
is conferred upon the board of directors by the certificate of incorporation it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal bylaws.
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