BY-LAWS OF
AEROCON, INC.
ARTICLE I
OFFICES
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1.1 REGISTERED OFFICE.
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The registered office of AeroCon, Inc. (the "Corporation"), in the
State of Delaware shall be at 32 Loockerman Square, Suite L-100, City of
Dover, County of Kent, Delaware 19904, and the registered agent in charge
thereof shall be The Prentice-Hall Corporation System.
1.2 OTHER OFFICES.
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The Corporation may also have an office or offices at any other
place or places within or outside the State of Delaware.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
2.1 ANNUAL MEETINGS.
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The annual meeting of the stockholders for the election of
directors, and for the transaction of such other business as may properly
come before the meeting, shall be held at such place, date and hour as
shall be fixed by the Board of Directors (the "Board") and designated in
the notice or waiver of notice thereof, except that no annual meeting
need be held if all actions, including the election of directors,
required by the General Corporation Law of the State of Delaware (the
"Delaware Statute") to be taken at a stockholders' annual meeting are
taken by written consent in lieu of meeting pursuant to Section 10 of
this Article II.
2.2 SPECIAL MEETINGS.
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A special meeting of the stockholders for any purpose or purposes
may be called by the Board, the Chairman, the President or the record
holders of at least a majority of the issued and outstanding shares of
Common Stock of the Corporation, to be held at such place, date and hour
as shall be designated in the notice or waiver of notice thereof.
2.3 NOTICE OF MEETINGS.
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Except as otherwise required by statute, the Certificate of
Incorporation of the Corporation (the "Certificate") or these By-laws,
notice of each annual or special meeting of the stockholders shall be
given to each stockholder of record entitled to vote at such meeting not
less than 10 nor more than 60 days before the day on which the meeting is
to be held, by delivering written notice thereof to him personally, or
by mailing a copy of such notice, postage prepaid, directly to him at his
address as it appears in the records of the Corporation, or by
transmitting such notice thereof to him at such address by telegraph,
cable or other telephonic transmission. Every such notice shall state
the place, the date and hour of the meeting, and, in case of a special
meeting, the purpose or purposes for which the meeting is called. Notice
of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy, or who
shall, in person or by attorney thereunto authorized, waive such notice
in writing, either before or after such meeting. Except as otherwise
provided in these By-laws, neither the business to be transacted at, nor
the purpose of, any meeting of the stockholders need be specified in any
such notice or waiver of notice. Notice of any adjourned meeting of
stockholders shall not be required to be given, except when expressly
required by law.
2.4 QUORUM.
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At each meeting of the stockholders, except where otherwise provided
by the Certificate or these By-laws, the holders of a majority of the
issued and outstanding shares of Common Stock of the Corporation entitled
to vote at such meeting, present in person or represented by proxy, shall
constitute a quorum for the transaction of business. In the absence of a
quorum, a majority in interest of the stockholders present in person or
represented by proxy and entitled to vote, or, in the absence of all the
stockholders entitled to vote, any officer entitled to preside at, or act
as secretary of, such meeting, shall have the power to adjourn the
meeting from time to time, until stockholders holding the requisite
amount of stock to constitute a quorum shall be present or represented.
At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally called.
2.5 ORGANIZATION.
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(a) Unless otherwise determined by the Board, at each meeting
of the stockholders, one of the following shall act as chairman of the
meeting and preside thereat, in the following order of precedence:
(i) the Chairman;
(ii) the President;
(iii) any director, officer or stockholder of the
Corporation designated by the Board to act as chairman of such
meeting and to preside thereat if the Chairman or the President
shall be absent from such meeting; or
(iv) a stockholder of record who shall be chosen chairman
of such meeting by a majority in voting interest of the stockholders
present in person or by proxy and entitled to vote thereat.
(b) The Secretary or, if he shall be presiding over such
meeting in accordance with the provisions of this Section 5 or if he
shall be absent from such meeting, the person (who shall be an Assistant
Secretary, if an Assistant Secretary has been appointed and is present)
whom the chairman of such meeting shall appoint, shall act as secretary
of such meeting and keep the minutes thereof.
2.6 ORDER OF BUSINESS.
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The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but such order of business
may be changed by a majority in voting interest of those present in
person or by proxy at such meeting and entitled to vote thereat.
2.7 VOTING.
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Except as otherwise provided by law, the Certificate or these By-
laws, at each meeting of the stockholders, every stockholder of the
Corporation shall be entitled to one vote in person or by proxy for each
share of Common Stock of the Corporation held by him and registered in
his name on the books of the Corporation on the date fixed pursuant to
Section 7 of Article VI as the record date for the determination of
stockholders entitled to vote at such meeting. Persons holding stock in
a fiduciary capacity shall be entitled to vote the shares so held. A
person whose stock is pledged shall be entitled to vote, unless, in the
transfer by the pledgor on the books of the Corporation, he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee or
his proxy may represent such stock and vote thereon. If shares or other
securities having voting power stand in the record of two or more
persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same
shares, unless the Secretary shall be given written notice to the
contrary and furnished with a copy of the instrument or order appointing
them or creating the relationship wherein it is so provided, their acts
with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting
binds all; and
(c) if more than one votes, but the vote is evenly split on
any particular matter, such shares shall be voted in the manner provided
by law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 7
shall be a majority or even-split in interest. The Corporation shall not
vote directly or indirectly any share of its own capital stock. Any vote
of stock may be given by the stockholder entitled thereto in person or by
his proxy appointed by an instrument in writing, subscribed by such
stockholder or by his attorney thereunto authorized, delivered to the
secretary of the meeting; PROVIDED, HOWEVER, that no proxy shall be voted
after three years from its date, unless said proxy provides for a longer
period. At all meetings of the stockholders, all matters (except where
other provision is made by law, the Certificate or these By-laws) shall
be decided by the vote of a majority in interest of the stockholders
present in person or by proxy at such meeting and entitled to vote
thereon, a quorum being present. Unless demanded by a stockholder
present in person or by proxy at any meeting and entitled to vote
thereon, the vote on any question need not be by ballot. Upon a demand
by any such stockholder for a vote by ballot upon any question, such
vote by ballot shall be taken. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his proxy, if there be such
proxy, and shall state the number of shares voted.
2.8 INSPECTION.
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The chairman of the meeting may at any time appoint one or more
inspectors to serve at any meeting of the stockholders. Any inspector
may be removed, and a new inspector or inspectors appointed, by the Board
at any time. Such inspectors shall decide upon the qualifications of
voters, accept and count votes, declare the results of such vote, and
subscribe and deliver to the secretary of the meeting a certificate
stating the number of shares of stock issued and outstanding and entitled
to vote thereon and the number of shares voted for and against the
question, respectively. The inspectors need not be stockholders of the
Corporation, and any director or officer of the Corporation may be an
inspector on any question other than a vote for or against his election
to any position with the Corporation or on any other matter in which he
may be directly interested. Before acting as herein provided, each
inspector shall subscribe an oath faithfully to execute the duties of an
inspector with strict impartiality and according to the best of his
ability.
2.9 LIST OF STOCKHOLDERS.
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It shall be the duty of the Secretary or other officer of the
Corporation who shall have charge of its stock ledger to prepare and
make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, 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 any such meeting, during ordinary business hours, for a period
of at least 10 days prior to such meeting, either at a place within the
city where such 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. Such 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.
2.10 STOCKHOLDERS' CONSENT IN LIEU OF MEETING.
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Any action required by the Delaware Statute to be taken at any
annual or special meeting of the 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, by a consent in writing, as permitted by the Delaware
Statute.
ARTICLE III
BOARD OF DIRECTORS
3.1 GENERAL POWERS.
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The business, property and affairs of the Corporation shall be
managed by or under the direction of the Board, which may exercise all
such powers of the Corporation and do all such lawful acts and things as
are not by law or by the Certificate directed or required to be exercised
or done by the stockholders.
3.2 NUMBER AND TERM OF OFFICE.
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The number of directors shall be fixed from time to time by the
Board. Directors need not be stockholders. Each director shall hold
office until his successor is elected and qualified, or until his earlier
death or resignation or removal in the manner hereinafter provided.
3.3 ELECTION OF DIRECTORS.
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At each meeting of the stockholders for the election of directors at
which a quorum is present, the persons receiving the greatest number of
votes, up to the number of directors to be elected, of the stockholders
present in person or by proxy and entitled to vote thereon shall be the
directors; PROVIDED, HOWEVER, that for purposes of such vote no
stockholder shall be allowed to cumulate his votes. Unless an election
by ballot shall be demanded as provided in Section 7 of Article II,
election of directors may be conducted in any manner approved at such
meeting.
3.4 RESIGNATION, REMOVAL AND VACANCIES.
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(a) Any director may resign at any time by giving written
notice to the Board, the Chairman, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the
time be not specified, upon receipt thereof; unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to
make it effective.
(b) Any director or the entire Board may be removed, with or
without cause, at any time by vote of the holders of a majority of the
shares then entitled to vote at an election of directors or by written
consent of the stockholders pursuant to Section 10 of Article II.
(c) Vacancies occurring on the Board for any reason may be
filled by vote of the stockholders or by the stockholders' written
consent pursuant to Section 10 of Article II, or by vote of the Board or
by the directors' written consent pursuant to Section 6 of this Article
III. If the number of directors then in office is less than a quorum,
such vacancies may be filled by a vote of a majority of the directors
then in office.
3.5 MEETINGS.
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(A) ANNUAL MEETINGS. As soon as practicable after each annual
election of directors, the Board shall meet for the purpose of
organization and the transaction of other business, unless it shall have
transacted all such business by written consent pursuant to Section 6 of
this Article III.
(B) OTHER MEETINGS. Other meetings of the Board shall be held
at such times and places as the Board, the Chairman, the President or any
director shall from time to time determine.
(C) NOTICE OF MEETINGS. Notice shall be given to each
director of each meeting, including the time, place and purpose of such
meeting. Notice of each such meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least
two days before the date on which such meeting is to be held, or shall be
sent to him at such place by telegraph, cable, wireless or other form of
recorded communication, or be delivered personally or by telephone not
later than the day before the day on which such meeting is to be held,
but notice need not be given to any director who shall attend such
meeting. A written waiver of notice, signed by the person entitled
thereto, whether before or after the time of the meeting stated therein,
shall be deemed equivalent to notice.
(D) PLACE OF MEETINGS. The Board may hold its meetings at
such place or places within or outside the State of Delaware as the Board
may from time to time determine, or as shall be designated in the
respective notices or waivers of notice thereof.
(E) QUORUM AND MANNER OF ACTING. A majority of the total
number of directors then in office shall be present in person at any
meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the vote of a majority of those
directors present at any such meeting at which a quorum is present shall
be necessary for the passage of any resolution or act of the Board,
except as otherwise expressly required by law or these By-laws. In the
absence of a quorum for any such meeting, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum
shall be present.
(F) ORGANIZATION. At each meeting of the Board, one of the
following shall act as chairman of the meeting and preside thereat, in
the following order of precedence:
(i) the Chairman;
(ii) the President (if a director); or
(iii) any director designated by a majority of the
directors present.
The Secretary or, in the case of his absence, an Assistant Secretary, if
an Assistant Secretary has been appointed and is present, or any person
whom the chairman of the meeting shall appoint shall act as secretary of
such meeting and keep the minutes thereof.
3.6 DIRECTORS' CONSENT IN LIEU OF MEETING.
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Any action required or permitted to be taken at any meeting of the
Board 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 all the directors then in office and such consent is filed
with the minutes of the proceedings of the Board.
3.7 ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT.
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Any one or more members of the Board may participate in a meeting of
the Board by means of conference telephone or similar communications
equipment by which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
3.8 COMMITTEES.
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The Board may, by resolution or resolutions passed by a majority of
the whole Board, designate one or more committees, each such committee to
consist of one or more directors of the Corporation, which to the extent
provided in said resolution or resolutions shall have and may exercise
the powers of the Board 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, such committee or committees
to have such name or names as may be determined from time to time by
resolution adopted by the Board. A majority of all the members of any
such committee may determine its action and fix the time and place of its
meetings, unless the Board shall otherwise provide. The Board shall have
power to change the members of any such committee at any time, to fill
vacancies and to discharge any such committee, either with or without
cause, at any time.
ARTICLE IV
OFFICERS
4.1 EXECUTIVE OFFICERS.
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The principal officers of the Corporation shall be a Chairman, if
one is appointed (and any references to the Chairman shall not apply if a
Chairman has not been appointed), a President, a Secretary, and a
Treasurer, and may include such other officers as the Board may appoint
pursuant to Section 3 of this Article IV. Any two or more offices may be
held by the same person.
4.2 AUTHORITY AND DUTIES.
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All officers, as between themselves and the Corporation, shall have
such authority and perform such duties in the management of the
Corporation as may be provided in these By-laws or, to the extent so
provided, by the Board.
4.3 OTHER OFFICERS.
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The Corporation may have such other officers, agents and employees
as the Board may deem necessary, including one or more Assistant
Secretaries, one or more Assistant Treasurers and one or more Vice
Presidents, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board, the Chairman, or the
President may from time to time determine. The Board may delegate to any
principal officer the power to appoint and define the authority and
duties of, or remove, any such officers, agents, or employees.
4.4 TERM OF OFFICE, RESIGNATION AND REMOVAL.
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(a) All officers shall be elected or appointed by the Board
and shall hold office for such term as may be prescribed by the Board.
Each officer shall hold office until his successor has been elected or
appointed and qualified or until his earlier death or resignation or
removal in the manner hereinafter provided. The Board may require any
officer to give security for the faithful performance of his duties.
(b) Any officer may resign at any time by giving written
notice to the Board, the Chairman, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the
time be not specified, at the time it is accepted by action of the Board.
Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
(c) All officers and agents elected or appointed by the Board
shall be subject to removal at any time by the Board or by the
stockholders of the Corporation with or without cause.
4.5 VACANCIES.
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If the office of Chairman, President, Secretary or Treasurer becomes
vacant for any reason, the Board shall fill such vacancy, and if any
other office becomes vacant, the Board may fill such vacancy. Any
officer so appointed or elected by the Board shall serve only until such
time as the unexpired term of his predecessor shall have expired, unless
reelected or reappointed by the Board.
4.6 THE CHAIRMAN.
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The Chairman shall give counsel and advice to the Board and the
officers of the Corporation on all subjects concerning the welfare of the
Corporation and the conduct of its business and shall perform such other
duties as the Board may from time to time determine. Unless otherwise
determined by the Board, he shall preside at meetings of the Board and of
the Stockholders at which he is present.
4.7 THE PRESIDENT.
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The President shall be the chief executive officer of the
Corporation. The President shall have general and active management and
control of the business and affairs of the Corporation subject to the
control of the Board and shall see that all orders and resolutions of the
Board are carried into effect. The President shall from time to time
make such reports of the affairs of the Corporation as the Board of
Directors may require and shall perform such other duties as the Board
may from time to time determine.
4.8 THE SECRETARY.
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The Secretary shall, to the extent practicable, attend all meetings
of the Board and all meetings of the stockholders and shall record all
votes and the minutes of all proceedings in a book to be kept for that
purpose. He may give, or cause to be given, notice of all meetings of
the stockholders and of the Board, and shall perform such other duties as
may be prescribed by the Board, the Chairman or the President, under
whose supervision he shall act. He shall keep in safe custody the seal
of the Corporation and affix the same to any duly authorized instrument
requiring it and, when so affixed, it shall be attested by his signature
or by the signature of the Treasurer or, if appointed, an Assistant
Secretary or an Assistant Treasurer. He shall keep in safe custody the
certificate books and stockholder records and such other books and
records as the Board may direct, and shall perform all other duties
incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Board, the Chairman or the President.
4.9 THE TREASURER.
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The Treasurer shall have the care and custody of the corporate funds
and other valuable effects, including securities, 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. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board, taking proper vouchers
for such disbursements, shall render to the Chairman, President and
directors, at the regular meetings of the Board, or whenever they may
require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation and shall perform all other duties
incident to the office of Treasurer and such other duties as from time to
time may be assigned to him by the Board, the Chairman or the President.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 EXECUTION OF DOCUMENTS.
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The Board shall designate, by either specific or general resolution,
the officers, employees and agents of the Corporation who shall have the
power to execute and deliver deeds, contracts, mortgages, bonds,
debentures, checks, drafts and other orders for the payment of money and
other documents for and in the name of the Corporation, and may authorize
such officers, employees and agents to delegate such power (including
authority to redelegate) by written instrument to other officers,
employees or agents of the Corporation; unless so designated or expressly
authorized by these By-laws, no officer, employee or agent shall have any
power or authority to bind the Corporation by any contract or engagement,
to pledge its credit or to render it liable pecuniarily for any purpose
or amount.
5.2 DEPOSITS.
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All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise
as the Board or Treasurer, or any other officer of the Corporation to
whom power in this respect shall have been given by the Board, shall
select.
5.3 PROXIES WITH RESPECT TO STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS.
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The Board shall designate the officers of the Corporation who shall
have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the
powers and rights which the Corporation may have as the holder of stock
or other securities in any other corporation, and to vote or consent with
respect to such stock or securities. Such designated officers may
instruct the person or persons so appointed as to the manner of
exercising such powers and rights, and such designated officers may
execute or cause to be executed in the name and on behalf of the
Corporation and under its corporate seal or otherwise, such written
proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its powers
and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
6.1 CERTIFICATES FOR SHARES.
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Every owner of stock of the Corporation shall be entitled to have a
certificate certifying the number and class of shares owned by him in
the Corporation, which shall be in such form as shall be prescribed by
the Board. Certificates shall be numbered and issued in consecutive
order and shall be signed by, or in the name of, the Corporation by the
Chairman, the President or any Vice President, and by the Treasurer (or
an Assistant Treasurer, if appointed) or the Secretary (or an Assistant
Secretary, if appointed). 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 adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate had
not ceased to be such officer or officers of the Corporation.
6.2 RECORD.
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A record in one or more counterparts shall be kept of the name of
the person, firm or corporation owning the shares represented by each
certificate for stock of the Corporation issued, the number of shares
represented by each such certificate, the date thereof and, in the case
of cancellation, the date of cancellation. Except as otherwise expressly
required by law, the person in whose name shares of stock stand on the
stock record of the Corporation shall be deemed the owner thereof for all
purposes regarding the Corporation.
6.3 TRANSFER AND REGISTRATION OF STOCK.
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(a) The transfer of stock and certificates which represent the
stock of the Corporation shall be governed by Article 8 of Subtitle 1 of
Title 6 of the Delaware Code (the Uniform Commercial Code), as amended
from time to time.
(b) Registration of transfers of shares of the Corporation
shall be made only on the books of the Corporation upon request of the
registered holder thereof, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the
Corporation, and upon the surrender of the certificate or certificates
for such shares properly endorsed or accompanied by a stock power duly
executed.
6.4 ADDRESSES OF STOCKHOLDERS.
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Each stockholder shall designate to the Secretary an address at
which notices of meetings and all other corporate notices may be served
or mailed to him, and, if any stockholder shall fail to designate such
address, corporate notices may be served upon him by mail directed to him
at his post-office address, if any, as the same appears on the share
record books of the Corporation or at his last known post-office address.
6.5 LOST, DESTROYED AND MUTILATED CERTIFICATES.
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The holder of any shares of the Corporation shall immediately notify
the Corporation of any loss, destruction or mutilation of the certificate
therefor, and the Board may, in its discretion, cause to be issued to him
a new certificate or certificates for such shares, upon the surrender of
the mutilated certificates or, in the case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction, and the
Board may, in its discretion, require the owner of the lost or destroyed
certificate or his legal representative to give the Corporation a bond in
such sum and with such surety or sureties as it may direct to indemnify
the Corporation against any claim that may be made against it on account
of the alleged loss or destruction of any such certificate.
6.6 REGULATIONS.
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The Board may make such rules and regulations as it may deem
expedient, not inconsistent with these By-laws, concerning the issue,
transfer and registration of certificates for stock of the Corporation.
6.7 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
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(a) 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, the Board may fix a record date,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board, and which record date
shall be not more than 60 nor less than 10 days before the date of such
meeting. If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding
the day on which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; PROVIDED, HOWEVER, that the Board may fix a new record date
for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board, and which date shall be not more than 10 days after
the date upon which the resolution fixing the record date is adopted by
the Board. If no record date has been fixed by the Board, the record
date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board is
required by the Delaware Statute, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered
office in this State, its principal place of business or an officer or
agent of the Corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been
fixed by the Board and prior action by the Board is required by the
Delaware Statute, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board adopts the resolution
taking such prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall
be not more than 60 days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall be in the form
of a circle and shall bear the full name of the Corporation, the year of
incorporation of the Corporation and the words and figures "Corporate
Seal - Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year unless
otherwise determined by the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
9.1 INDEMNIFICATION.
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(a) As provided in the Charter, to the fullest extent
permitted by the Delaware Statute as the same exists or may hereafter be
amended, a director of this Corporation shall not be liable to the
Corporation or its stockholders for breach of fiduciary duty as a
director.
(b) Without limitation of any right conferred by paragraph (a)
of this Section 1, each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director,
officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity while serving as a director,
officer or employee or in any other capacity while serving as a director,
officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware Statute, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than permitted prior thereto),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer or employee and shall inure to the benefit of the
indemnitee's heirs, testators, intestates, executors and administrators;
PROVIDED, HOWEVER, that such person 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 a criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful; PROVIDED
FURTHER, HOWEVER, that no indemnification shall be made in the case of an
action, suit or proceeding by or in the right of the Corporation in
relation to matters as to which it shall be adjudged in such action, suit
or proceeding that such director, officer, employee or agent is liable to
the Corporation, unless a court having jurisdiction shall determine that,
despite such adjudication, such person is fairly and reasonably entitled
to indemnification; PROVIDED FURTHER, HOWEVER, that, except as provided
in Section 1(c) of this Article IX with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) initiated by
such indemnitee was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article IX
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of
expenses"); PROVIDED, HOWEVER, that, if the Delaware Statute requires, an
advancement of expenses incurred by an indemnitee in his or her capacity
as a director or officer (and not in any other capacity in which service
was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to
the Corporation of an undertaking (hereinafter an "undertaking"), by or
on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which
there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses
under this Section or otherwise.
(c) If a claim under Section (b) of this Article IX is not
paid in full by the Corporation with 60 days after a written claim has
been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20
days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms
of any undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit
by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in the Delaware Statute.
Neither the failure of the Corporation (including the Board, independent
legal counsel, or the stockholders) to have made a determination prior to
the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware Statute, nor an actual
determination by the Corporation (including the Board, independent legal
counsel, or the stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case
of such a suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to indemnification
or to an advancement of expenses hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to
be indemnified, or to such advancement of expenses, under this Section or
otherwise shall be on the Corporation.
(d) The rights to indemnification and to the advancement of
expenses conferred in this Article IX shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
the Charter, agreement, vote of stockholders or disinterested directors
or otherwise.
9.2 INSURANCE.
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The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any person who is or was a director, officer,
employee or agent of the Corporation or any person who is or was serving
at the request of the Corporation as a director, officer, employer or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware Statute.
ARTICLE X
AMENDMENT
Any by-law (including these By-laws) may be adopted, amended or
repealed by the vote of the holders of a majority of the shares then
entitled to vote or by the stockholders' written consent pursuant to
Section 10 of Article II, or by the vote of the Board or by the
directors' written consent pursuant to Section 6 of Article III.
* * * * *
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AEROCON, INC.
BY-LAWS
TABLE OF CONTENTS
PAGE
ARTICLE I OFFICES.................................................... 1
1.1 Registered Office.............................................. 1
1.2 Other Offices.................................................. 1
ARTICLE II MEETING OF STOCKHOLDERS; STOCKHOLDERS' CONSENT IN LIEU
OF MEETING........................................................... 1
2.1 Annual Meetings................................................ 1
2.2 Special Meetings............................................... 1
2.3 NOTICE OF MEETINGS............................................. 1
2.4 Quorum......................................................... 2
2.5 ORGANIZATION................................................... 2
2.6 Order of Business.............................................. 2
2.7 VOTING......................................................... 2
2.8 Inspection..................................................... 3
2.9 LIST OF STOCKHOLDERS........................................... 4
2.10 Stockholders' Consent in Lieu of Meeting...................... 4
ARTICLE III BOARD OF DIRECTORS....................................... 4
3.1 General Powers................................................. 4
3.2 Number and Term of Office...................................... 4
3.3 ELECTION OF DIRECTORS.......................................... 4
3.4 Resignation, Removal and Vacancies............................. 4
3.5 MEETINGS....................................................... 5
3.6 Directors' Consent in Lieu of Meeting.......................... 6
3.7 ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT.......................................................... 6
3.8 Committees..................................................... 6
ARTICLE IV OFFICERS.................................................. 6
4.1 Executive Officers............................................. 6
4.2 Authority and Duties........................................... 6
4.3 OTHER OFFICERS................................................. 7
4.4 Term of Office, Resignation and Removal........................ 7
4.5 VACANCIES...................................................... 7
4.6 The Chairman................................................... 7
4.7 THE PRESIDENT.................................................. 7
4.8 The Secretary.................................................. 8
4.9 THE TREASURER.................................................. 8
ARTICLE V CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.............. 8
5.1 Execution of Documents......................................... 8
5.2 Deposits....................................................... 8
5.3 PROXIES WITH RESPECT TO STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS......................................................... 9
ARTICLE VI SHARES AND THEIR TRANSFER; FIXING RECORD DATE............. 9
6.1 Certificates for Shares........................................ 9
6.2 Record......................................................... 9
6.3 TRANSFER AND REGISTRATION OF STOCK............................. 9
6.4 Addresses of Stockholders...................................... 10
6.5 LOST, DESTROYED AND MUTILATED CERTIFICATES..................... 10
6.6 Regulations.................................................... 10
6.7 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD........ 10
ARTICLE VII SEAL..................................................... 11
Article VIII Fiscal Year............................................. 11
ARTICLE IX INDEMNIFICATION AND INSURANCE............................. 11
9.1 Indemnification................................................ 11
9.2 Insurance...................................................... 13
ARTICLE X AMENDMENT.................................................. 13
____________________
AEROCON, INC.
Incorporated under the laws
of the State of Delaware
_____________________
___________________________
BY-LAWS
___________________________
As adopted on February 14, 1995