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EXHIBIT 3.14
BY-LAWS
OF
VA ACQUISITION CORP.,
a Delaware corporation (the "Corporation")
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE.
The registered office of the Corporation in the State of
Delaware shall be located at 1209 Orange Street, Wilmington, Delaware, County of
New Castle. The name of the Corporation's registered agent at such address shall
be The Corporation Trust Company.
SECTION 1.2 OTHER OFFICES.
The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 ANNUAL MEETINGS.
An annual meeting of stockholders shall be held each year for
the election of directors at such date, time and place either within or without
the State of Delaware as shall be designated by the Board of Directors. Any
other proper business may be transacted at the annual meeting of stockholders.
SECTION 2.2 SPECIAL MEETINGS.
Special meetings of stockholders may be called at any time by
the Board of Directors, the Chairman (as hereinafter defined), if any, the Vice
Chairman, if any, or the President. Each special meeting shall be held at such
date, time and place either within or without the State of Delaware as shall be
designated by the person or persons calling such meeting at least ten days prior
to such meeting.
SECTION 2.3 NOTICE OF MEETING.
Unless otherwise provided by law, whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the date, time and place of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the written notice of any
meeting shall be given not less than ten nor more than sixty days before the
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date of the meeting to each stockholder entitled to vote at the meeting. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation.
SECTION 2.4 ADJOURNMENTS.
Any meeting of stockholders, annual or special, may adjourn
from time to time to reconvene at the same or some other place, and notice need
not be given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
SECTION 2.5 QUORUM.
Unless otherwise provided by law or the certificate of
incorporation, at each meeting of stockholders, the presence in person or by
proxy of the holders of a majority in voting power of the outstanding shares of
stock entitled to vote at the meeting shall be necessary and sufficient to
constitute a quorum. For purposes of the foregoing, two or more classes or
series of capital stock shall be considered a single class if the holders
thereof are entitled to vote together as a single class at the meeting. In the
absence of a quorum, the stockholders so present and represented may, by vote of
the holders of a majority of the shares of capital stock of the Corporation so
present and represented, adjourn the meeting from time to time until a quorum
shall attend, and the provisions of Section 2.4 of these By-laws shall apply to
each such adjournment. Shares of its own capital stock belonging on the record
date for the meeting 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; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
SECTION 2.6 ORGANIZATION.
Meetings of stockholders shall be presided over by the
Chairman, if any, or in his absence by the Vice Chairman, if any, or in his
absence by the President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
SECTION 2.7 VOTING; PROXIES.
Unless otherwise provided by the certificate of incorporation,
each stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of capital stock held by him which has
voting power on the subject matter submitted to a vote at the meeting. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons
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to act for him 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. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary before the proxy is voted. Unless otherwise
required by law, voting of stockholders for the election of directors need not
be by written ballot. Voting of stockholders for all other matters need not be
by written ballot unless so determined at a stockholders meeting by the vote of
the holders of a majority of the outstanding shares of each class of capital
sock present in person or represented by proxy at the meeting and entitled to
vote on the subject matter submitted to a vote at the meeting. Unless otherwise
provided by law or the certificate of incorporation, the vote of the holders of
a majority of the shares of capital stock of the Corporation present in person
or represented by proxy at a meeting at which a quorum is present and entitled
to vote on the subject matter submitted to a vote at the meeting shall be the
act of the stockholders.
SECTION 2.8 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof or to express consent to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
more than ten days after the date upon which the resolution fixing the record
date with respect to the taking of corporate action by written consent without a
meeting is adopted by the Board of Directors, nor more than sixty days prior to
any other action. If no record date is fixed: (a) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the 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; (b) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
required by law, 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 in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; (c)
the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when prior action by the Board of
Directors is required, shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action; and (d) 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.
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SECTION 2.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The Secretary shall make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present.
SECTION 2.10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING.
Unless otherwise provided by law or by the certificate of
incorporation, any action required by law to be taken at any annual or special
meeting of stockholders of the Corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 POWERS; NUMBER; QUALIFICATIONS.
Unless otherwise provided by law or the certificate of
incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. Unless otherwise provided by
the certificate of incorporation, the Board of Directors shall initially consist
of one (1) director and thereafter shall consist of such number of directors as
the Board of Directors shall from time to time designate. Unless otherwise
provided by the certificate of incorporation, directors need not be
stockholders.
SECTION 3.2 ELECTION; TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES.
Each director shall hold office until his successor is elected
and qualified or until his earlier resignation or removal. Any director may
resign at any time upon written notice to the Corporation directed to the Board
of Directors or the Secretary. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. Any director or the entire
Board of Directors may be removed, with or without cause, by the vote of the
holders of a majority of shares of capital stock then entitled to vote at an
election of directors. Whenever the holders of shares of any class or series of
capital stock are entitled to elect one or more directors by the provisions of
the certificate of incorporation, the provisions of the preceding sentence shall
apply, in respect to
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the removal without cause of a director or directors so elected, to the vote of
the holders of the outstanding shares of that class or series of capital stock
and not to the vote of the holders of the outstanding shares of capital stock as
a whole. Unless otherwise provided by the certificate of incorporation,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders having a right
to vote as a single class may be filled by the vote of a majority of the
directors then in office, although less than a quorum, or by the vote of the
sole remaining director. Whenever the holders of shares of any class or classes
of capital stock or series thereof are entitled to elect one or more directors
by the provisions of the certificate of incorporation, vacancies and newly
created directorships of such class or classes or series thereof may be filled
by the vote of a majority of the directors elected by such class or classes or
series thereof then in office, or by the vote of the sole remaining director so
elected.
SECTION 3.3 REGULAR MEETINGS.
Regular meetings of the Board of Directors shall be held at
such dates, times and places either within or without the State of Delaware as
the Board of Directors shall from time to time determine.
SECTION 3.4 SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called at
any time by the Chairman, the President or by any member of the Board of
Directors. Each special meeting shall be held at such date, time and place
either within or without the State of Delaware as shall be fixed by the person
or persons calling the meeting.
SECTION 3.5 NOTICE OF MEETINGS.
Written notice of each meeting of the Board of Directors shall
be given which shall state the date, time and place of the meeting. The written
notice of any meeting shall be given at least twenty-four hours in advance of
the meeting to each director. Notice may be given by letter, telegram, telex or
facsimile and shall be deemed to have been given when deposited in the United
States mail, delivered to the telegraph company or transmitted by telex or
facsimile, as the case may be.
SECTION 3.6 TELEPHONIC MEETINGS PERMITTED.
Members of the Board of Directors or any committee designated
by the Board of Directors may participate in a meeting of the Board of Directors
or of such committee by means of conference telephone or similar communication
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this by-law shall
constitute presence in person at such meeting.
SECTION 3.7 QUORUM; VOTE REQUIRED FOR ACTION.
Unless otherwise required by law, at each meeting of the Board
of Directors, the presence of one-third of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at a meeting at which a
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quorum is present shall be the act of the Board of Directors, unless the vote of
a greater number is required by law or the certificate of incorporation. In case
at any meeting of the Board of Directors a quorum shall not be present, the
members of the Board of Directors present may by majority vote to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall attend.
SECTION 3.8 ORGANIZATION.
Meetings of the Board of Directors shall be presided over by
the Chairman, or in his absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
SECTION 3.9 ACTION BY DIRECTORS WITHOUT A MEETING.
Unless otherwise provided by the certificate of incorporation,
any action required or permitted to be taken at any meeting of the Board of
Directors or any committee designated by the Board of Directors may be taken
without a meeting if all members of the Board of Directors or of such committee
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
SECTION 3.10 COMPENSATION OF DIRECTORS.
Unless otherwise provided by the certificate of incorporation,
the Board of Directors shall have the authority to fix the compensation of
directors, which compensation may include the reimbursement of expenses incurred
in connection with meetings of the Board of Directors or a committee thereof.
ARTICLE IV
COMMITTEES
SECTION 4.1 COMMITTEES.
The Board of Directors may, by resolution passed by a majority
of the whole Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member of such
committee at any meeting thereof. In the absence or disqualification of a member
of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member.
SECTION 4.2 POWER OF COMMITTEES.
Any committee designated by the Board of Directors, to the
extent provided in a resolution of the Board of Directors, shall have and may
exercise all the powers and authority of
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the Board of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority to take any action which by law may only be taken by the Board of
Directors or to take any action with reference to: amending the certificate of
incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors, fix the designation and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the Corporation or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of
dissolution, removing or indemnifying directors or amending these By-laws; and,
unless a resolution of the Board of Directors expressly so provides, no such
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock or to adopt a certificate of ownership and merger pursuant
to the General Corporation Law of the State of Delaware.
SECTION 4.3 COMMITTEE RULES.
Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may adopt, amend and repeal rules
for the conduct of its business. In the absence of a resolution by the Board of
Directors or a provision in the rules of such committee to the contrary, the
presence of a majority of the total number of members of such committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of the members present at a meeting at which a quorum is present shall be the
act of such committee.
ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS: ELECTIONS.
As soon as practicable after the annual meeting of
stockholders in each year, the Board of Directors shall elect from its
membership or outside thereof a President and a Secretary. The Board of
Directors may also elect from its membership a Chairman and a Vice Chairman, and
from its membership or outside thereof one or more Vice Presidents, one or more
Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and
one or more Assistant Treasurers and such other officers or agents as it may
determine. Unless otherwise provided by the certificate of incorporation, any
number of offices may be held by the same person.
SECTION 5.2 TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES.
Except as otherwise provided by the Board of Directors when
electing any officer, each officer shall hold office until the first meeting of
the Board of Directors after the annual meeting of stockholders next succeeding
his election, or until his successor is elected and
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qualified or until his earlier resignation or removal. Any officer may resign at
any time upon written notice to the Corporation directed to the Board of
Directors and the Secretary. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. The Board of Directors may
remove any officer or agent with or without cause at any time. Any such removal
shall be without prejudice to the contractual rights of such officer or agent,
if any, with the Corporation, but the election of an officer or agent shall not
of itself create any contractual rights. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors.
SECTION 5.3 POWERS AND DUTIES.
The officers of the Corporation shall have such powers and
duties in the management of the Corporation as shall be stated in these By-laws
or in a resolution of the Board of Directors which is not inconsistent with
these By-laws and, to the extent not so stated, as generally pertain to their
respective offices, subject to the control of the Board of Directors.
SECTION 5.4 CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER.
The Chairman of the Board and Chief Executive Officer (the
"Chairman") shall be the chief executive officer of the Corporation and shall
have the powers and perform the duties incident to that position. Subject to the
powers of the Board of Directors, he or she shall be in the general and active
charge of the entire business and affairs of the Corporation and shall be its
chief policy making officer. He or she shall preside at all meetings of the
Board of Directors and stockholders and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or provided in
these By-laws. Whenever the President is unable to serve, by reason of sickness,
absence or otherwise, the Chairman shall perform all the duties and
responsibilities and exercise all the powers of the President.
SECTION 5.5 THE PRESIDENT.
The President, subject to the powers of the Board of Directors
and the Chairman, shall have general charge of the business, affairs and
property of the Corporation and control over its officers, agents and employees;
and shall see that all orders and resolutions of the Board of Directors are
carried into effect. The President shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, if any, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation. The
President shall have such other powers and perform such other duties as may be
prescribed by the Chairman or the Board of Directors or as may be provided in
these By-laws.
SECTION 5.6 EXECUTIVE VICE-PRESIDENT.
The Executive Vice-President in the absence or disability of
the President, perform the duties and exercise the powers of the president and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
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SECTION 5.7 THE SECRETARY AND THE ASSISTANT SECRETARIES.
The Secretary shall attend all meetings of the Board of
Directors, all meetings of the committees thereof and all meetings of the
stockholders and record all the proceedings of the meetings in a book or books
to be kept for that purpose. Under the President's supervision, the Secretary
shall give, or cause to be given, all notices required to be given by these
By-laws or by law; shall have such powers and perform such duties as the Board
of Directors, the Chairman, the President or these By-laws may, from time to
time, prescribe; and shall have custody of the corporate seal, if any, of the
Corporation. The Secretary, or an Assistant Secretary, shall have authority to
affix the corporate seal, if any, to any instrument requiring it and when so
affixed, it may be attested by his or her signature or by the signature of such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the corporate seal, if any, and to attest the affixing by
his or her signature. The Assistant Secretary shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors, the Chairman, the President or Secretary may, from time to
time, prescribe.
SECTION 5.8 THE TREASURER.
The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board
of Directors so requires, an account of all the treasurers transactions as
treasurer and of the financial condition of the corporation. If required by the
Board of Directors, the treasurer shall give the corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the Treasurers office
and for the restoration to the corporations in case of the Treasurers death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Treasurer's possession or under
the Treasurer's control belonging to the corporation.
SECTION 5.9 OTHER OFFICERS; SECURITY.
The other officers, if any, of the Corporation shall have such
duties and powers as generally pertain to their respective offices and such
other duties and powers as the Board of Directors shall from time to time
delegate to each such officer. The Board of Directors may require any officer,
agent or employee to give security, by bond or otherwise, for the faithful
performance of his duties.
SECTION 5.10 COMPENSATION OF OFFICERS.
The compensation of each officer shall be fixed by the Board
of Directors and no officer shall be prevented from receiving such compensation
by virtue of his also being a director.
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ARTICLE VI
STOCK
SECTION 6.1 CERTIFICATES.
Every holder of one or more shares of capital stock of the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman or Vice Chairman, if any, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, if any, or the
Secretary or an Assistant Secretary, certifying the number of shares owned by
him in the Corporation. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
SECTION 6.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW
CERTIFICATES.
The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 RIGHT TO INDEMNIFICATION.
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 is or
was a director or officer of the Corporation or is or was serving at the request
of the corporation as a director, officer, employee or agent 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 as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, 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 reasonable
expense, liability and loss (including, without limitation, reasonable
attorneys' fees, judgments, fines and amounts paid in settlement) 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,
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employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
Section 7.2 below 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) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this ARTICLE VII
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 General Corporation Law of the State of Delaware requires,
an advancement of expenses incurred by an indemnitee in his capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee) 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 ARTICLE VII or otherwise.
SECTION 7.2 RIGHT OF INDEMNITEE TO BRING SUIT.
If a claim under Section 7.1 above is not paid in full by the
Corporation within sixty 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 thirty 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 an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (a) 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 (b) 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
General Corporation Law of the State of Delaware. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
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 General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, independent
counsel or its 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
ARTICLE VII or otherwise shall be on the Corporation.
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SECTION 7.3 INSURANCE.
The Corporation may purchase and maintain insurance on its own
behalf or on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss
asserted against him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation Law of the
State of Delaware.
SECTION 7.4 NONEXCLUSIVELY OF RIGHTS.
The rights conferred on any person by this Article VII shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the certificate of incorporation, these
By-laws, agreement, vote of stockholders or disinterested directors or
otherwise.
SECTION 7.5 OTHER INDEMNIFICATION.
The Corporation's obligation, if any, to indemnify or to
advance expenses to any person who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such person may collect as indemnification or advancement of expenses from such
other corporation, partnership, joint venture, trust, enterprise or nonprofit
enterprise.
SECTION 7.6 AMENDMENT OR REPEAL.
Any repeal or modification of the foregoing provisions of this
Article VII shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 FISCAL YEAR.
The fiscal year of the Corporation shall be determined by the
Board of Directors.
SECTION 8.2 SEAL.
The Corporation may have a corporate seal which shall have the
name of the Corporation inscribed thereon and shall be in such form as may be
approved from time to time by the Board of Directors.
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SECTION 8.3 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS AND
COMMITTEES.
Whenever notice is required to be given by law, the
certificate of incorporation or these By-laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Unless otherwise provided by the certificate of
incorporation, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice.
SECTION 8.4 INTERESTED DIRECTORS, OFFICERS, QUORUM.
No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more
of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if: (a) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors constitute less
than a quorum; or (b) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (c) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
SECTION 8.5 BOOKS AND RECORDS.
The books and records of the Corporation may be kept within or
without the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
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SECTION 8.6 AMENDMENT OF BY-LAWS.
These By-laws may be amended or repealed, and new by-laws
adopted, by the Board of Directors, but the stockholders entitled to vote may
adopt additional by-laws and may amend or repeal any by-law whether or not
adopted by them.
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