EXHIBIT 3.8
BY-LAWS
OF
BRITTAIN MACHINE, INC.
****
INCORPORATED UNDER THE LAWS
OF THE
STATE OF DELAWARE
ON
SEPTEMBER 2, 1999
****
LAW OFFICES
OF
MORGAN, LEWIS & BOCKIUS LLP
300 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071-3132
TABLE OF CONTENTS
ARTICLE I Stockholders ............................................1
SECTION 1. Annual Meeting...........................................1
SECTION 2. Special Meetings.........................................1
SECTION 3. Notice of Meetings.......................................1
SECTION 4. Quorum...................................................1
SECTION 5. Adjourned Meetings.......................................2
SECTION 6. Organization.............................................2
SECTION 7. Voting...................................................2
SECTION 8. Inspectors...............................................3
SECTION 9. Consent of Stockholders in Lieu of Meeting...............3
ARTICLE II Board of Directors ......................................3
SECTION 1. Number and Term of Office................................3
SECTION 2. Removal, Vacancies and Additional Directors..............4
SECTION 3. Place of Meeting.........................................4
SECTION 4. Regular Meetings.........................................4
SECTION 5. Special Meetings.........................................4
SECTION 6. Quorum...................................................5
SECTION 7. Organization.............................................5
SECTION 8. Committees...............................................5
SECTION 9. Conference Telephone Meetings............................5
SECTION 10. Consent of Directors or Committee in Lieu of Meeting.....5
ARTICLE III Officers ................................................6
SECTION 1. Officers.................................................6
SECTION 2. Powers and Duties of the Chairman of the Board..........6
SECTION 3. Powers and Duties of the President.......................6
SECTION 4. Powers and Duties of the Vice Presidents.................7
SECTION 5. Powers and Duties of the Secretary.......................7
SECTION 6. Powers and Duties of the Treasurer.......................7
SECTION 7. Additional Officers......................................7
SECTION 8. Giving of Bond by Officers...............................8
SECTION 9. Voting Upon Stocks.......................................8
SECTION 10. Compensation of Officers.................................8
ARTICLE IV Indemnification of Directors and Officers ...............8
SECTION 1. Nature of Indemnity......................................8
SECTION 2. Successful Defense.......................................9
SECTION 3. Determination that Indemnification is Proper.............9
SECTION 4. Advance Payment of Expenses.............................10
-1-
SECTION 5. Survival; Preservation of Other Rights..................10
SECTION 6. Severability............................................10
SECTION 7. Subrogation.............................................10
SECTION 8. No Duplication of Payments..............................11
ARTICLE V Stock-Seal-Fiscal Year .................................11
SECTION 1. Certificates For Shares of Stock........................11
SECTION 2. Lost, Stolen or Destroyed Certificates..................11
SECTION 3. Transfer of Shares......................................12
SECTION 4. Regulations.............................................12
SECTION 5. Record Date.............................................12
SECTION 6. Dividends...............................................12
SECTION 7. Corporate Seal..........................................13
SECTION 8. Fiscal Year.............................................13
ARTICLE VI Miscellaneous Provisions ...............................13
SECTION 1. Checks, Notes, Etc......................................13
SECTION 2. Loans...................................................13
SECTION 3. Contracts...............................................13
SECTION 4. Waivers of Notice.......................................14
SECTION 5. Offices Outside of Delaware.............................14
ARTICLE VII Amendments .............................................14
-2-
BY-LAWS
OF
BRITTAIN MACHINE, INC.
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation shall be held on such date, at such time and
at such place within or without the State of Delaware as may be designated by
the Board of Directors, for the purpose of electing Directors and for the
transaction of such other business as may be properly brought before the
meeting.
SECTION 2. SPECIAL MEETINGS. Except as otherwise provided in the
Certificate of Incorporation, a special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors, the Chairman
of the Board or the President. Any special meeting of the stockholders shall
be held on such date, at such time and at such place within or without the
State of Delaware as the Board of Directors or the officer calling the
meeting may designate. At a special meeting of the stockholders, no business
shall be transacted and no corporate action shall be taken other than that
stated in the notice of the meeting unless all of the stockholders are
present in person or by proxy, in which case any and all business may be
transacted at the meeting even though the meeting is held without notice.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise provided in
these By-laws or by law, a written notice of each meeting of the stockholders
shall be given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder of the Corporation entitled to
vote at such meeting at his address as it appears on the records of the
Corporation. The notice shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called.
SECTION 4. QUORUM. At any meeting of the stockholders, the
holders of a majority in number of the total outstanding shares of stock of
the Corporation entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum of the stockholders for all
purposes, unless the representation of a larger number of shares shall be
required by law, by the Certificate of Incorporation or by these By-laws, in
which case the representation of the number of shares so required shall
constitute a quorum; provided that at any meeting of the stockholders at
which the holders of any class of stock of the Corporation shall be entitled
to vote separately as a class, the holders of a majority in number of the
total outstanding shares of such class, present in person or represented by
proxy, shall constitute a quorum for purposes of such
-1-
class vote unless the representation of a larger number of shares of such
class shall be required by law, by the Certificate of Incorporation or by
these By-laws.
SECTION 5. ADJOURNED MEETINGS. Whether or not a quorum shall be
present in person or represented at any meeting of the stockholders, the
holders of a majority in number of the shares of stock of the Corporation
present in person or represented by proxy and entitled to vote at such
meeting may adjourn from time to time; provided, however, that if the holders
of any class of stock of the Corporation are entitled to vote separately as a
class upon any matter at such meeting, any adjournment of the meeting in
respect of action by such class upon such matter shall be determined by the
holders of a majority of the shares of such class present in person or
represented by proxy and entitled to vote at such meeting. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the stockholders, or the
holders of any class of stock entitled to vote separately as a class, as the
case may be, may transact any business which might have been transacted by
them at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
SECTION 6. ORGANIZATION. The Chairman of the Board or, in the
absence of the Chairman of the Board, the President shall call all meetings
of the stockholders to order, and shall act as Chairman of such meetings. In
the absence of the Chairman of the Board and the President, the holders of a
majority in number of the shares of stock of the Corporation present in
person or represented by proxy and entitled to vote at such meeting shall
elect a Chairman.
The Secretary of the Corporation shall act as Secretary of all
meetings of the stockholders; but in the absence of the Secretary, the
Chairman may appoint any person to act as Secretary of the meeting. It shall
be the duty of the Secretary to prepare and make, at least ten days before
every meeting of stockholders, a complete list of 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
stockholder. Such list shall be open, 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, for the ten days next preceding the meeting, to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, and shall be produced and kept at the time and place of the meeting
during the whole time thereof and subject to the inspection of any
stockholder who may be present.
SECTION 7. VOTING. Except as otherwise provided in the
Certificate of Incorporation or by law, each stockholder shall be entitled to
one vote for each share of the capital stock of the Corporation registered in
the name of such stockholder upon the books of the Corporation. Each
stockholder entitled to vote at a meeting of stockholders or to express
consent or dissent to
-2-
corporate action in writing without a meeting may authorize another person or
persons to act for him or her by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. When directed by the presiding officer or upon the demand of
any stockholder, the vote upon any matter before a meeting of stockholders
shall be by ballot. Except as otherwise provided by law or by the Certificate
of Incorporation, Directors shall be elected by a plurality of the votes cast
at a meeting of stockholders by the stockholders entitled to vote in the
election and, whenever any corporate action, other than the election of
Directors is to be taken, it shall be authorized by a majority of the votes
cast at a meeting of stockholders by the stockholders entitled to vote
thereon.
Shares of the capital stock of the Corporation belonging to the
Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes.
SECTION 8. INSPECTORS. When required by law or directed by the
presiding officer or upon the demand of any stockholder entitled to vote, but
not otherwise, the polls shall be opened and closed, the proxies and ballots
shall be received and taken in charge, and all questions touching the
qualification of voters, the validity of proxies and the acceptance or
rejection of votes shall be decided at any meeting of the stockholders by two
or more Inspectors who may be appointed by the Board of Directors before the
meeting, or if not so appointed, shall be appointed by the presiding officer
at the meeting. If any person so appointed fails to appear or act, the
vacancy may be filled by appointment in like manner.
SECTION 9. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided in the Certificate of Incorporation, any action required
to be taken or which may be taken at any annual or special meeting of the
stockholders of the Corporation, 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 any such
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
BOARD OF DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE. The business and affairs
of the Corporation shall be managed by or under the direction of a Board of
Directors, none of whom need be stockholders of the Corporation. The number
of Directors constituting the Board of Directors shall be fixed from time to
time by resolution passed by a majority of the Board of Directors. The
Directors shall, except as hereinafter otherwise provided for filling
vacancies, be
-3-
elected at the annual meeting of stockholders, and shall hold office until
their respective successors are elected and qualified or until their earlier
resignation or removal.
SECTION 2. REMOVAL, VACANCIES AND ADDITIONAL DIRECTORS. The
stockholders may, at any special meeting the notice of which shall state that
it is called for that purpose, remove, with or without cause, any Director
and fill the vacancy; provided that whenever any Director shall have been
elected by the holders of any class of stock of the Corporation voting
separately as a class under the provisions of the Certificate of
Incorporation, such Director may be removed and the vacancy filled only by
the holders of that class of stock voting separately as a class. Vacancies
caused by any such removal and not filled by the stockholders at the meeting
at which such removal shall have been made, or any vacancy caused by the
death or resignation of any Director or for any other reason, and any newly
created directorship resulting from any increase in the authorized number of
Directors, may be filled by the affirmative vote of a majority of the
Directors then in office, although less than a quorum, and any Director so
elected to fill any such vacancy or newly created directorship shall hold
office until his successor is elected and qualified or until his earlier
resignation or removal.
When one or more Directors shall resign 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
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as herein provided
in connection with the filling of other vacancies.
SECTION 3. PLACE OF MEETING. The Board of Directors may hold its
meetings in such place or places in the State of Delaware or outside the
state of Delaware as the Board from time to time shall determine.
SECTION 4. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as the Board from time to
time by resolution shall determine. No notice shall be required for any
regular meeting of the Board of Directors; but a copy of every resolution
fixing or changing the time or place of regular meetings shall be mailed to
every Director at least five days before the first meeting held in pursuance
thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by direction of the Chairman of the
Board, the President or by any two of the Directors then in office.
Notice of the day, hour and place of holding of each special
meeting shall be given by mailing the same at least two days before the
meeting or by causing the same to be transmitted by facsimile, telegram or
telephone at least one day before the meeting to each Director. Unless
otherwise indicated in the notice thereof, any and all business other than an
amendment of these By-laws may be transacted at any special meeting, and an
amendment of these By-laws may be acted upon if the notice of the meeting
shall have stated that the amendment of these By-laws is
-4-
one of the purposes of the meeting. At any meeting at which every Director
shall be present, even though without any notice, any business may be
transacted, including the amendment of these By-laws.
SECTION 6. QUORUM. Subject to the provisions of Section 2 of
this Article II, a majority of the members of the Board of Directors in
office (but, unless the Board shall consist solely of one Director, in no
case less than one-third of the total number of Directors nor less than two
Directors) shall constitute a quorum for the transaction of business and the
vote of the majority of the Directors present at any meeting of the Board of
Directors at which a quorum is present shall be the act of the Board of
Directors. If at any meeting of the Board there is less than a quorum
present, a majority of those present may adjourn the meeting from time to
time.
SECTION 7. ORGANIZATION. The Chairman of the Board or, in the
absence of the Chairman of the Board, the President shall preside at all
meetings of the Board of Directors. In the absence of the Chairman of the
Board and the President, a Chairman shall be elected from the Directors
present. The Secretary of the Corporation shall act as Secretary of all
meetings of the Directors; but in the absence of the Secretary, the Chairman
may appoint any person to act as Secretary of the meeting.
SECTION 8. COMMITTEES. The Board of Directors may 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 such
member or members 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, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and the
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 approving or adopting; or
recommending to the stockholders, any action or matter expressly required by
law to be submitted to stockholders for approval, or adopting, amending or
repealing these By-laws.
SECTION 9. CONFERENCE TELEPHONE MEETINGS. Unless otherwise
restricted by the Certificate of Incorporation or by these By-laws, the
members of the Board of Directors or any committee designated by the Board,
may participate in a meeting of the Board or such committee, as the case may
be, 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 shall constitute presence in person at such meeting.
SECTION 10. CONSENT OF DIRECTORS OR COMMITTEE IN LIEU OF
MEETING. Unless otherwise restricted by the Certificate of Incorporation or
by these By-laws, any action required
-5-
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, as the case may be.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Secretary
and a Treasurer, and such additional officers, if any, as shall be elected by
the Board of Directors pursuant to the provisions of Section 7 of this
Article III. The Chairman of the Board, the President, one or more Vice
Presidents, the Secretary and the Treasurer shall be elected by the Board of
Directors at its first meeting after each annual meeting of the stockholders.
The failure to hold such election shall not of itself terminate the term of
office of any officer. All officers shall hold office at the pleasure of the
Board of Directors. Any officer may resign at any time upon written notice to
the Corporation. Officers may, but need not, be Directors. Any number of
offices may be held by the same person.
All officers, agents and employees shall be subject to removal,
with or without cause, at any time by the Board of Directors. The removal of
an officer without cause shall be without prejudice to his contract rights,
if any. The election or appointment of an officer shall not of itself create
contract rights. All agents and employees other than officers elected by the
Board of Directors shall also be subject to removal, with or without cause,
at any time by the officers appointing them.
Any vacancy caused by the death, resignation or removal of any
officer, or otherwise, may be filled by the Board of Directors, and any
officer so elected shall hold office at the pleasure of the Board of
Directors.
In addition to the powers and duties of the officers of the
Corporation as set forth in these By-laws, the officers shall have such
authority and shall perform such duties as from time to time may be
determined by the Board of Directors.
SECTION 2. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. The
Chairman of the Board, subject to the control of the Board of Directors,
shall have general charge and control of all the Corporation's business and
affairs and shall have all powers and shall perform all duties incident to
the office of Chairman of the Board. The Chairman shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors
and shall have such other powers and perform such other duties as may from
time to time be assigned by these By-laws or by the Board of Directors.
SECTION 3. POWERS AND DUTIES OF THE PRESIDENT. The President,
subject to the control of the Board of Directors and the Chairman of the
Board, shall have general charge and
-6-
control of all the Corporation's operations and shall have all powers and
shall perform all duties incident to the office of President. In the absence
of the Chairman of the Board, the President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors and shall have
such other powers and perform such other duties as may from time to time be
assigned by these By-laws or by the Board of Directors or the Chairman of the
Board.
SECTION 4. POWERS AND DUTIES OF THE VICE PRESIDENTS. Each Vice
President shall have all powers and shall perform all duties incident to the
office of Vice President and shall have such other powers and perform such
other duties as may from time to time be assigned by these By-laws or by the
Board of Directors, the Chairman of the Board or the President.
SECTION 5. POWERS AND DUTIES OF THE SECRETARY. The Secretary
shall keep the minutes of all meetings of the Board of Directors and the
minutes of all meetings of the stockholders in books provided for that
purpose. The Secretary shall attend to the giving or serving of all notices
of the Corporation; shall have custody of the corporate seal of the
Corporation and shall affix the same to such documents and other papers as
the Board of Directors or the President shall authorize and direct; shall
have charge of the stock certificate books, transfer books and stock ledgers
and such other books and papers as the Board of Directors or the President
shall direct, all of which shall at all reasonable times be open to the
examination of any Director, upon application, at the office of the
Corporation during business hours; and whenever required by the Board of
Directors or the President shall render statements of such accounts. The
Secretary shall have all powers and shall perform all duties incident to the
office of Secretary and shall also have such other powers and shall perform
such other duties as may from time to time be assigned by these By-laws or by
the Board of Directors, the Chairman of the Board or the President.
SECTION 6. POWERS AND DUTIES OF THE TREASURER. The Treasurer
shall have custody of, and when proper shall pay out, disburse or otherwise
dispose of, all funds and securities of the Corporation. The Treasurer may
endorse on behalf of the Corporation for collection checks, notes and other
obligations and shall deposit the same to the credit of the Corporation in
such bank or banks or depositary or depositaries as the Board of Directors
may designate; shall sign all receipts and vouchers for payments made to the
Corporation; shall enter or cause to be entered regularly in the books of the
Corporation kept for the purpose full and accurate accounts of all moneys
received or paid or otherwise disposed of and whenever required by the Board
of Directors or the President shall render statements of such accounts. The
Treasurer shall, at all reasonable times, exhibit the books and accounts to
any Director of the Corporation upon application at the office of the
Corporation during business hours; and shall have all powers and shall
perform all duties incident to the office of Treasurer and shall also have
such other powers and shall perform such other duties as may from time to
time be assigned by these By-laws or by the Board of Directors, the Chairman
of the Board or the President.
SECTION 7. ADDITIONAL OFFICERS. The Board of Directors may from
time to time elect such other officers (who may but need not be Directors),
including a Chief Executive
-7-
Officer, Chief Financial Officer, Controller, Assistant Treasurers, Assistant
Secretaries and Assistant Controllers, as the Board may deem advisable and
such officers shall have such authority and shall perform such duties as may
from time to time be assigned by the Board of Directors, the Chairman of the
Board or the President.
The Board of Directors may from time to time by resolution
delegate to any Assistant Treasurer or Assistant Treasurers any of the powers
or duties herein assigned to the Treasurer; and may similarly delegate to any
Assistant Secretary or Assistant Secretaries any of the powers or duties
herein assigned to the Secretary.
SECTION 8. GIVING OF BOND BY OFFICERS. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish
bonds to the Corporation for the faithful performance of their duties, in
such penalties and with such conditions and security as the Board shall
require.
SECTION 9. VOTING UPON STOCKS. Unless otherwise ordered by the
Board of Directors, the Chairman of the Board, the President or any Vice
President shall have full power and authority on behalf of the Corporation to
attend and to act and to vote, or in the name of the Corporation to execute
proxies to vote, at any meeting of stockholders of any corporation in which
the Corporation may hold stock, and at any such meeting shall possess and may
exercise, in person or by proxy, any and all rights, powers and privileges
incident to the ownership of such stock. The Board of Directors may from time
to time, by resolution, confer like powers upon any other person or persons.
SECTION 10. COMPENSATION OF OFFICERS. The officers of the
Corporation shall be entitled to receive such compensation for their services
as shall from time to time be determined by the Board of Directors.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. NATURE OF INDEMNITY. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or
she is or was or has agreed to become a Director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as a Director or officer of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity, and may indemnify any person
who was or is a party or is threatened to be made a party to such an action,
suit or proceeding by reason of the fact that he or she is or was or has
agreed to become an employee or agent of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement
-8-
actually and reasonably incurred by such person or on his or her behalf in
connection with such action, suit or proceeding and any appeal therefrom, if
the person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful; except that in the case of an action
or suit by or in the right of the Corporation to procure a judgment in its
favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the
defense or settlement of such action or suit, and (2) no indemnification
shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
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 or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
SECTION 2. SUCCESSFUL DEFENSE. To the extent that a Director,
officer, employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
in Section 1 of this Article IV or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
SECTION 3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 1
of this Article IV (unless ordered by a court) shall be made by the
Corporation unless a determination is made that indemnification of the
Director or officer is not proper in the circumstances because he or she has
not met the applicable standard of conduct set forth in Section 1. Any
indemnification of an employee or agent of the Corporation under Section 1
(unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in Section 1. Any such determination shall be made (1) by a
majority vote of the Directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
-9-
SECTION 4. ADVANCE PAYMENT OF EXPENSES. Unless the Board of
Directors otherwise determines in a specific case, expenses incurred by a
Director or officer in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of the Director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by
the Corporation as authorized in this Article IV. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate. The Board of Directors may
authorize the Corporation's legal counsel to represent such Director,
officer, employee or agent in any action, suit or proceeding, whether or not
the Corporation is a party to such action, suit or proceeding.
SECTION 5. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or
any action, suit, or proceeding previously or thereafter brought or
threatened based in whole or in part upon any such state of facts. Such a
contract right may not be modified retroactively without the consent of such
Director, officer, employee or agent.
The indemnification provided by this Article IV shall not be
deemed exclusive of any other rights to which a person indemnified may be
entitled under any By-law, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a Director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. The Corporation may enter into an agreement
with any of its Directors, officers, employees or agents providing for
indemnification and advancement of expenses, including attorneys fees, that
may change, enhance, qualify or limit any right to indemnification or
advancement of expenses created by this Article IV.
SECTION 6. SEVERABILITY. If this Article IV or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Director
or officer and may indemnify each employee or agent of the Corporation as to
costs, charges and expenses (including attorneys' fees), judgment, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action
by or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article IV that shall not have been invalidated
and to the fullest extent permitted by applicable law.
SECTION 7. SUBROGATION. In the event of payment of
indemnification to a person described in Section 1 of this Article IV, the
Corporation shall be subrogated to the extent of
-10-
such payment to any right of recovery such person may have and such person,
as a condition of receiving indemnification from the Corporation, shall
execute all documents and do all things that the Corporation may deem
necessary or desirable to perfect such right of recovery, including the
execution of such documents necessary to enable the Corporation effectively
to enforce any such recovery.
SECTION 8. NO DUPLICATION OF PAYMENTS. The Corporation shall not
be liable under this Article IV to make any payment in connection with any
claim made against a person described in Section 1 of this Article IV to the
extent such person has otherwise received payment (under any insurance
policy, By-law or otherwise) of the amounts otherwise payable as indemnity
hereunder.
ARTICLE V
STOCK-SEAL-FISCAL YEAR
SECTION 1. CERTIFICATES FOR SHARES OF STOCK. The certificates
for shares of stock of the Corporation shall be in such form, not
inconsistent with the Certificate of Incorporation, as shall be approved by
the Board of Directors. All certificates 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, and shall not
be valid unless so signed.
In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be issued and delivered as
though the person or persons who signed such certificate or certificates had
not ceased to be such officer or officers of the Corporation.
All certificates for shares of stock shall be consecutively
numbered as the same are issued. The name of the person owning the shares
represented thereby with the number of such shares and the date of issue
thereof shall be entered on the books of the Corporation.
Except as hereinafter provided, all certificates surrendered to
the Corporation for transfer shall be canceled, and no new certificates shall
be issued until former certificates for the same number of shares have been
surrendered and canceled.
SECTION 2. LOST, STOLEN OR DESTROYED CERTIFICATES. Whenever a
person owning a certificate for shares of stock of the Corporation alleges
that it has been lost, stolen or destroyed, he or she shall file in the
office of the Corporation an affidavit setting forth, to the best of his or
her knowledge and belief, the time, place and circumstances of the loss,
theft or destruction, and, if required by the Board of Directors, a bond of
indemnity or other indemnification sufficient in the opinion of the Board of
Directors to indemnify the Corporation and its agents against any claim that
may be made against it or them on account of the alleged loss, theft or
destruction of
-11-
any such certificate or the issuance of a new certificate in replacement
therefor. Thereupon the Corporation may cause to be issued to such person a
new certificate in replacement for the certificate alleged to have been lost,
stolen or destroyed. Upon the stub of every new certificate so issued shall
be noted the fact of such issue and the number, date and the name of the
registered owner of the lost, stolen or destroyed certificate in lieu of
which the new certificate is issued.
SECTION 3. TRANSFER OF SHARES. Shares of stock of the
Corporation shall be transferred on the books of the Corporation by the
holder thereof, in person or by his attorney duly authorized in writing, upon
surrender and cancellation of certificates for the number of shares of stock
to be transferred, except as provided in Section 2 of this Article V.
SECTION 4. REGULATIONS. The Board of Directors shall have power
and authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
SECTION 5. 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 to receive payment of any dividend or
other distribution or allotment of any rights, or to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, as the case may be, the Board of Directors may fix,
in advance, a record date, which shall not be (i) more than sixty (60) nor
less than ten (10) days before the date of such meeting, or (ii) in the case
of corporate action to be taken by consent in writing without a meeting,
prior to, or more than ten (10) days after, the date upon which the
resolution fixing the record date is adopted by the Board of Directors, or
(iii) more than sixty (60) days prior to any other action.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held; 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 of Directors is
necessary, shall be the day on which the first written consent is delivered
to the Corporation; and the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. 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.
SECTION 6. DIVIDENDS. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors shall have power to
declare and pay dividends upon shares of stock of the Corporation, but only
out of funds available for the payment of dividends as provided by law.
-12-
Subject to the provisions of the Certificate of Incorporation,
any dividends declared upon the stock of the Corporation shall be payable on
such date or dates as the Board of Directors shall determine. If the date
fixed for the payment of any dividend shall in any year fall upon a legal
holiday, then the dividend payable on such date shall be paid on the next day
not a legal holiday.
SECTION 7. CORPORATE SEAL. The Board of Directors shall provide
a suitable seal, containing the name of the Corporation, which seal shall be
kept in the custody of the Secretary. A duplicate of the seal may be kept and
be used by any officer of the Corporation designated by the Board of
Directors, the Chairman of the Board or the President.
SECTION 8. FISCAL YEAR. The fiscal year of the Corporation shall
be such fiscal year as the Board of Directors from time to time by resolution
shall determine.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. CHECKS, NOTES, ETC. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment
of money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the Corporation and/or other persons as the
Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes,
obligations and orders for the payment of money made payable to the
Corporation may be endorsed for deposit to the credit of the Corporation with
a duly authorized depository by the Treasurer and/or such other officers or
persons as the Board of Directors from time to time may designate.
SECTION 2. LOANS. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized so to do, any officer or agent of the Corporation
may effect loans and advances for the Corporation from any bank, trust
company or other institution or from any firm, corporation or individual, and
for such loans and advances may make, execute and deliver promissory notes,
bonds or other evidences of indebtedness of the Corporation. When authorized
so to do, any officer or agent of the Corporation may pledge, hypothecate or
transfer, as security for the payment of any and all loans, advances,
indebtedness and liabilities of the Corporation, any and all stocks,
securities and other personal property at any time held by the Corporation,
and to that end may endorse, assign and deliver the same. Such authority may
be general or confined to specific instances.
SECTION 3. CONTRACTS. Except as otherwise provided in these
By-laws or by law or as otherwise directed by the Board of Directors, the
Chairman of the Board, the President or any Vice President shall be
authorized to execute and deliver, in the name and on behalf of the
Corporation, all agreements, bonds, contracts, deeds, mortgages, and other
instruments, either for the Corporation's own account or in a fiduciary or
other capacity, and the seal of the Corporation,
-13-
if appropriate, shall be affixed thereto by any of such officers or the
Secretary or an Assistant Secretary. The Board of Directors, the Chairman of
the Board, the President or any Vice President designated by the Board of
Directors, the Chairman of the Board or the President may authorize any other
officer, employee or agent to execute and deliver, in the name and on behalf
of the Corporation, agreements, bonds, contracts, deeds, mortgages, and other
instruments, either for the Corporation's own account or in a fiduciary or
other capacity, and, if appropriate, to affix the seal of the Corporation
thereto. The grant of such authority by the Board or any such officer may be
general or confined to specific instances.
SECTION 4. WAIVERS OF NOTICE. Whenever any notice whatever is
required to be given by law, by the Certificate of Incorporation or by these
By-laws to any person or persons, a waiver thereof in writing, signed by the
person or persons entitled to the notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
SECTION 5. OFFICES OUTSIDE OF DELAWARE. Except as otherwise
required by the laws of the State of Delaware, the Corporation may have an
office or offices and keep its books, documents and papers outside of the
State of Delaware at such place or places as from time to time may be
determined by the Board of Directors or the Chairman of the Board.
ARTICLE VII
AMENDMENTS
These By-laws and any amendment thereof may be altered, amended
or repealed, or new By-laws may be adopted, by the Board of Directors at any
regular or special meeting by the affirmative vote of a majority of all of
the members of the Board, provided in the case of any special meeting at
which all of the members of the Board are not present, that the notice of
such meeting shall have stated that the amendment of these By-laws was one of
the purposes of the meeting; but these By-laws and any amendment thereof, may
be altered, amended or repealed or new By-laws may be adopted by the holders
of a majority of the total outstanding stock of the Corporation entitled to
vote at any annual meeting or at any special meeting, provided, in the case
of any special meeting, that notice of such proposed alteration, amendment,
repeal or adoption is included in the notice of the meeting.
-14-
CERTIFICATE OF ADOPTION OF BY-LAWS
OF
BRITTAIN MACHINE, INC.
This is to certify:
That I am the duly elected, qualified and acting Secretary of
BRITTAIN MACHINE, INC. (the "Corporation") and the attached By-laws were
adopted as the By-laws of the Corporation on September 2, 1999 by the
Unanimous Written Consent of the Board of Directors.
Dated effective the 2nd day of September, 1999.
/s/ DOUGLAS B. SOLOMON
-----------------------------
Douglas B. Solomon, Secretary
(Seal)
-15-