EXHIBIT 3.10
BYLAWS
OF
INSIGHT-SUB CORP.
A Delaware Corporation
TABLE OF CONTENTS
ARTICLE 1: OFFICES ........................................................................... 1
1.1 Registered Office and Agent .................................................... 1
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1.2 Other Offices .................................................................. 1
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ARTICLE 2: MEETINGS OF STOCKHOLDERS .......................................................... 1
2.1 Annual Meeting ................................................................. 1
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2.2 Special Meeting ................................................................ 2
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2.3 Place of Meetings .............................................................. 2
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2.4 Notice ......................................................................... 2
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2.5 Voting List .................................................................... 2
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2.6 Quorum ......................................................................... 3
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2.7 Required Vote: Withdrawal of Quorum ............................................ 3
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2.8 Method of Voting: Proxies ...................................................... 3
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2.9 Record Date .................................................................... 4
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2.10 Conduct of Meeting ............................................................. 5
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2.11 Inspectors ..................................................................... 5
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2.12 Action by Written Consent ...................................................... 5
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ARTICLE 3: DIRECTORS ......................................................................... 6
3.1 Management ..................................................................... 6
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3.2 Number: Qualification: Election: Term .......................................... 6
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3.3 Change in Number ............................................................... 6
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3.4 Removal ........................................................................ 6
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3.5 Vacancies ...................................................................... 6
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3.6 Meetings of Directors .......................................................... 6
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3.7 First Meeting .................................................................. 7
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3.8 Election of Officers ........................................................... 7
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3.9 Regular Meetings ............................................................... 7
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3.10 Special Meetings ............................................................... 7
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3.11 Notice ......................................................................... 7
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3.12 Quorum: Majority Vote .......................................................... 7
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3.13 Compensation ................................................................... 8
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3.14 Telephone Meetings ............................................................. 8
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3.15 Waiver of Notice and Presumption of Assent ..................................... 8
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3.16 Action by Written Consent ...................................................... 8
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ARTICLE 4: COMMITTEES ........................................................................ 8
4.1 Designation .................................................................... 8
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4.2 Number: Qualification: Term .................................................... 8
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4.3 Authority ...................................................................... 9
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4.4 Committee Changes .............................................................. 9
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4.5 Alternate Members of Committees ................................................ 9
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4.6 Regular Meetings ............................................................... 9
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4.7 Special Meetings ............................................................... 9
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4.8 Quorum: Majority Vote .......................................................... 9
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4.9 Minutes ........................................................................ 9
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4.10 Compensation ................................................................... 10
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4.11 Responsibility ................................................................. 10
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4.12 Committee Rules ................................................................ 10
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ARTICLE 5: NOTICE ............................................................................ 10
5.1 Method ......................................................................... 10
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5.2 Waiver ......................................................................... 10
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ARTICLE 6: OFFICERS .......................................................................... 11
6.1 Number: Titles: Term of Office ................................................. 11
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6.2 Removal ........................................................................ 11
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6.3 Vacancies ...................................................................... 11
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6.4 Authority ...................................................................... 11
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6.5 Compensation ................................................................... 11
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6.6 Duties of President ............................................................ 11
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6.7 Duties of the Vice Presidents .................................................. 12
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6.8 Duties of the Secretary ........................................................ 12
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6.9 Duties of the Treasurer ........................................................ 12
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6.10 Other Officers. Assistant Officers and Agents .................................. 12
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6.11 Absence or Disability of Officers .............................................. 12
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ARTICLE 7: INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS ................................. 12
7.1 Nature of Indemnity ............................................................ 13
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7.2 Procedure for Indemnification of Directors and Officers ........................ 13
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7.3 Article Not Exclusive .......................................................... 14
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7.4 Insurance ...................................................................... 14
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7.5 Expenses ....................................................................... 14
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7.6 Employees and Agents ........................................................... 14
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7.7 Contract Rights ................................................................ 14
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7.8 Merger or Consolidation ........................................................ 14
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ARTICLE 8: CERTIFICATES AND SHAREHOLDERS ..................................................... 15
8.1 Certificates for Shares ........................................................ 15
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8.2 Replacement Of Lost or Destroyed Certificates .................................. 15
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8.3 Transfer of Shares ............................................................. 15
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8.4 Registered Stockholders ........................................................ 16
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8.5 Regulations .................................................................... 16
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8.6 Legends ........................................................................ 16
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8.7 Subscriptions for Stock ........................................................ 16
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ARTICLE 9: MISCELLANEOUS PROVISIONS .......................................................... 16
9.1 Dividends ...................................................................... 16
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9.2 Reserves ....................................................................... 16
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9.3 Books and Records .............................................................. 17
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9.4 Checks, Drafts or Orders ....................................................... 17
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9.5 Contracts ...................................................................... 17
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9.6 Loans .......................................................................... 17
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9.7 Fiscal Year .................................................................... 17
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9.8 Seal ........................................................................... 18
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9.9 Resignations ................................................................... 18
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9.10 Voting Securities Owned By Corporation ......................................... 18
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9.11 Mortgages. etc ................................................................. 18
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9.12 Headings ....................................................................... 18
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9.13 References ..................................................................... 18
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9.14 Inconsistent Provisions ........................................................ 18
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9.15 Amendments ..................................................................... 18
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iii
BYLAWS
OF
INSIGHT-SUB CORP.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of InSight-Sub Corp., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE 1: OFFICES
1.1 Registered Office and Agent. The registered office of the
Corporation in the state of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of the
Corporation's registered agent at such address shall be The Corporation Trust
Company. The registered office and registered agent of the Corporation shall be
as designated from time to time by action of the board of directors and by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
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 as the business of the Corporation
may require.
ARTICLE 2: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called at any time by the board of directors, the chairman of the board, or the
president, and shall be called by the president or the secretary at the request
in writing of the stockholders of record of not less than ten percent (10%) of
all shares entitled to vote at such meeting or as otherwise provided by the
certificate of incorporation of the Corporation. A special meeting shall be held
on such date and at such time as shall be designated by the person(s) calling
the meeting and stated in the notice of the meeting or in a
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duly executed waiver of notice of such meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in the notice of
such meeting or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held
at any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and
time of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the president, the
secretary or the officer or person(s) calling the meeting, to each stockholder
of record entitled to vote at such meeting. If such notice is to be sent by
mail, it shall be directed to such stockholder at his address as it appears on
the records of the Corporation, unless he shall have filed with the secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. 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 and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Voting List. At least ten (10) days before each meeting of
stockholders, the secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares registered in the name of each stockholder. For
a period of ten (10) days prior to such meeting, such list shall be kept on file
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be held
and shall be open to examination by any stockholder during ordinary business
hours. Such list shall be produced at such meeting and kept at the meeting at
all times during such meeting and may be inspected by any stockholder who is
present.
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these bylaws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by
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proxy, any business may be transacted which may have been transacted at the
original meeting had a quorum been present; provided that, if the adjournment is
for more than thirty (30) days or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting.
2.7 Required Vote: Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting: Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one (1) vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each such
proxy shall be filed with the secretary of the Corporation before or at the time
of the meeting. No proxy shall be valid after three (3) years from the date of
its execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof 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 a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, for any such determination of
stockholders, such date in any case to be not more than sixty (60) days and not
less than ten (10) days prior to such meeting nor more than sixty (60) days
prior to any other action. If no record date is fixed:
(i) 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.
(ii) 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.
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(iii) 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.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the board
of directors 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 of
directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by law or these bylaws, 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 the State
of Delaware, 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
in the State of Delaware or principal place of business shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the board of directors and prior action by the board of directors
is required by law or these bylaws, 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 of directors adopts the
resolution taking such prior action.
2.10 Conduct of Meeting. The chairman of the board shall preside at
all meetings of stockholders. The secretary shall keep the records of each
meeting of stockholders. In the absence or inability to act of any such officer,
such officer's duties shall be performed by the officer given the authority to
act for such absent or non-acting officer under these bylaws or by some person
appointed by the meeting.
2.11 Inspectors. The board of directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the results,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request, or matter determined
by them and shall execute a certificate of any fact found by them. No director
or candidate for the office of director shall act as an inspector of an election
of directors. Inspectors need not be stockholders.
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2.12 Action by Written Consent. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken and bearing the dates of
signature of the stockholders who signed the consent or consents, 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 and
shall be delivered to the Corporation by delivery to its registered office in
the State of Delaware, or the Corporation's principal place of business, or an
officer or agent of the Corporation having custody of the book or books in which
proceedings of meetings of the stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. All consents properly delivered in accordance
with this section shall be deemed to be recorded when so delivered. No written
consent shall be effective to take the corporate action referred to therein
unless, within sixty (60) days of the earliest dated consent delivered to the
Corporation as required by this section, written consents signed by the holders
of a sufficient number of shares to take such corporate action are so recorded.
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. Any action taken pursuant to such written consent or
consents of the stockholders shall have the same force and effect as if taken by
the stockholders at a meeting thereof
ARTICLE 3: DIRECTORS
3.1 Management. The business and property of the Corporation shall
be managed by the board of directors. Subject to the restrictions imposed by
law, the certificate of incorporation of the Corporation, or these bylaws, the
board of directors may exercise all the powers of the Corporation.
3.2 Number: Qualification: Election: Term. The number of directors
shall be not less than one (1) nor more than ten (10). The exact number of
directors within the minimum and maximum limitations specified in the preceding
sentence shall be fixed from time to time by the board of directors pursuant to
a resolution adopted by a majority of the entire board of directors. At all
meetings of stockholders for the election of directors, a plurality of the votes
cast shall be sufficient to elect any nominee.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Any director or the entire board of directors may be
removed only for cause, and only by the affirmative vote of the holders of a
majority of the combined voting power of the outstanding shares of the
Corporation entitled to vote.
3.5 Vacancies. Newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the board of
directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote of the
directors then in office, although less than a quorum, or by a sole remaining
director. Directors chosen pursuant to any of the foregoing provisions shall
hold office for a term expiring at the annual
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meeting of stockholders at which the term to which they have been elected
expires and until their successors are duly elected and have qualified or until
their earlier resignation or removal.
3.6 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 First Meeting. Each newly elected board of directors shall hold
its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of stockholders, and no notice of such meeting shall be
necessary.
3.8 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places as shall be designated from time to time
by resolution of the board of directors. Notice of such regular meetings shall
not be required.
3.10 Special Meetings. Special meetings of the board of directors
shall be held whenever called by or at the request of the chairman of the board,
the president, any director, or as designated from time to time by resolution of
the board of directors.
3.11 Notice. The secretary shall give notice of each special meeting
to each director at least twenty-four (24) hours before the meeting, either
personally, by telephone, mail, overnight courier service, telegram or
facsimile. Notice of any such meeting need not be given to any director who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting without protesting, prior to or at its
commencement, the lack of notice to him. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of notice of such meeting.
3.12 Quorum: Majority Vote. A majority of the total number of
directors then in office shall constitute a quorum for the transaction of
business. The vote of a majority of directors present at a meeting at which a
quorum is present shall be the act of the board of directors, unless the
question is one upon which by express provisions of an applicable law or of the
certificate of incorporation or these bylaws a different vote is required, in
which case such express provision shall govern and control the decision of such
question. If a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
3.13 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing
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contained herein shall be construed to preclude any director from serving the
Corporation in any other capacity or receiving compensation therefor.
3.14 Telephone Meetings. Members of the board of directors or any
committee thereof may participate in and act at any meeting of such board or
committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this Section shall
constitute presence in person at the meeting.
3.15 Waiver of Notice and Presumption of Assent. Any member of the
board of directors or any committee thereof who is present at a meeting shall be
conclusively presumed to have waived notice of such meeting except when such
member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his dissent shall be entered in the minutes of the
meeting or unless his written dissent to such action shall be filed with the
person acting as the secretary of the meeting before the adjournment thereof or
shall be forwarded by registered mail to the secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to any member who voted in favor of such action.
3.16 Action by Written Consent. Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at
any meeting of the board of directors, or of any committee thereof, may be taken
without a meeting if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
ARTICLE 4: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted
by a majority of the entire board of directors, designate one or more
committees.
4.2 Number: Qualification: Term. Each committee shall consist of one
or more directors appointed by resolution adopted by a majority of the entire
board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the earliest
of (i) the expiration of his term as director, (ii) his resignation as a
committee member or as a director, or (iii) his removal as a committee member or
as a director.
4.3 Authority. Each committee, to the extent expressly provided in
the resolution establishing such committee, shall have and may exercise all of
the authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power
at any time to fill vacancies in, to change the membership of, and to discharge
any committee.
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4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two (2) days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum: Majority Vote. At meetings of any committee, a majority
of the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings
to be prepared and shall report the same to the board of directors upon the
request of the board of directors. The minutes of the proceedings of each
committee shall be delivered to the secretary of the Corporation for placement
in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board
of directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
4.12 Committee Rules. Each committee of the board of directors may
fix its own rules or procedure and shall hold its meetings as provided by such
rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. In the event that a member and that
member's alternate, if alternates ate designated by the board of directors as
provided in Section 4.5 of this Article 4, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or
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members 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.
ARTICLE 5: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or facsimile). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, or facsimile shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE 6: OFFICERS
6.1 Number: Titles: Term of Office. The officers of the Corporation
shall be a president, a secretary, and such other officers as the board of
directors may from time to time elect or appoint, including one or more vice
presidents (with each vice president to have such descriptive title, if any, as
the board of directors shall determine) and a treasurer. The officers of the
Corporation shall be elected annually by the board of directors at its first
meeting held after each annual meeting of stockholders, or as soon thereafter as
conveniently may be. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified, until his death, or until he
shall resign or shall have been removed in the manner hereinafter provided. Any
two or more offices may be held by the same person. None of the officers need be
a stockholder or a director of the Corporation or a resident of the state of
Delaware. In its discretion, the board of directors may choose not to fill any
office for any period of time as it may deem advisable.
6.2 Removal. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
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6.3 Vacancies. Any vacancy occurring in any office of the
Corporation because of by death, resignation, removal, disqualification or
otherwise may be filled by the board of directors for the unexpired portion of
the term by the board of directors then in office.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors. No officer shall be
prevented from receiving such compensation by virtue of his also being a
director of the Corporation.
6.6 Duties of President. The president shall preside at all meetings
of the board of directors. The president shall be the chief executive officer of
the Corporation. The president shall be responsible for the general and active
management of the business of the Corporation and shall ensure 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, except when required or permitted by law to be
otherwise signed and executed and except when 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 perform such other duties and have
such other duties as may be prescribed from time to time by the board of
directors of the Corporation.
6.7 Duties of the Vice Presidents. The vice presidents shall, in the
order of their organizational ranking, in the absence or disability, or in the
event of a vacancy in the office, 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 may from time to time be prescribed by the board of
directors of the Corporation.
6.8 Duties of the Secretary. The secretary shall keep, or cause to
be kept, in books provided for that purpose, the minutes of the meetings of the
stockholders, the board of directors, or any committee thereof, and shall see
that all notices are duly given in accordance with the provisions of these
Bylaws. As required by law, the secretary shall be the custodian of the records
of the Corporation. The secretary shall keep the seal of the Corporation in safe
custody and, when authorized by the board, affix such seal to any document
requiring it, and when so affixed, it shall be attested by his signature or by
the signature of the treasurer or an assistant secretary. The secretary shall
perform such other duties and have such other powers as may be prescribed from
time to time by the Corporation's board of directors.
6.9 Duties of the Treasurer. The treasurer shall have charge and
custody of, and shall be responsible for, all funds and securities of the
Corporation and shall deposit such funds in the name of the Corporation in such
banks, trust companies and other depositories as shall be designated by the
board of directors. The treasurer shall perform such other duties and have such
other powers as may be prescribed from time to time by the Corporation's board
of directors.
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6.10 Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these bylaws, shall have such authority and perform such duties
as may from time to time be prescribed by the board of directors.
6.11 Absence or Disability of Officers. In the case of the absence or
disability of any officer of the Corporation and of any person hereby authorized
to act in such officer's place during such officer's absence or disability, the
board of directors may by resolution delegate the powers and duties of such
officer to any other officer or to any director, or to any other person whom it
may select.
ARTICLE 7: INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
7.1. Nature of Indemnity. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he, or a person of whom
he is the legal representative, 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, fiduciary, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, may be indemnified and
held harmless by the Corporation to the fullest extent which it is empowered to
do so by the Delaware General Corporation Law, as the same exists or may
hereafter by amended against all expense, liability and loss (including
attorneys' fees actually and reasonably incurred by such person in connection
with such proceeding) and such indemnification shall inure to the benefit of his
heirs, executors and administrators; provided, however, that, except as provided
in Section 7.2 hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the board of directors of the Corporation. The
Corporation may, by action of its board of directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
7.2 Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the Corporation under Section 7.2 of
this Article 7 or advance of expenses under Section 7.5 of this Article 7 shall
be made promptly, and in any event within thirty (30) days, upon the written
request of the director or officer. If a determination by the Corporation that
the director or officer is entitled to indemnification pursuant to this Article
7 is required, and the Corporation fails to respond within sixty (60) days to a
written request for indemnity, the Corporation shall be deemed to have approved
the request. If the Corporation denies a written request for indemnification or
advancing of expenses, in whole or in part, or if payment in fall pursuant to
such request is not made within thirty (30) days, the right to indemnification
or advances as granted by this Article 7 shall be enforceable by the director or
officer in any court of competent jurisdiction. Such person's costs and expenses
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation. Neither the
failure of the Corporation (including its board of directors, independent legal
counsel, or its
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stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
7.3 Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article 7 shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
7.4 Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director, officer,
employee, fiduciary, or agent of the Corporation 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
liability asserted against him and incurred by him in any such capacity, whether
or not the Corporation would have the power to indemnify such person against
such liability under this Article 7.
7.5 Expenses. Expenses incurred by any person described in
Section 7.1 of this Article 7 in defending a proceeding shall be paid by the
Corporation in advance of such proceeding's final disposition 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 is not entitled to be indemnified by
the Corporation. 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.
7.6 Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article 7 and who are or were employees or agents
of the Corporation, or who are or were serving at the request of the Corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the board of directors.
7.7 Contract Rights. The provisions of this Article 7 shall be
deemed to be a contract right between the Corporation and each director or
officer who serves in any such capacity at any time while this Article 7 and the
relevant provisions of the Delaware General Corporation Law or other applicable
law are in effect, and any repeal or modification of this Article 7 or any such
law shall not affect any rights or obligations then existing with respect to any
state of facts or proceeding then existing.
7.8 Merger or Consolidation. For purposes of this Article 7,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent
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corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this Article 7 with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
ARTICLE 8: CERTIFICATES AND SHAREHOLDERS
8.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. Every holder of stock in the Corporation shall be entitled to have a
certificate, signed by or in the name of the Corporation. The certificates
shall be signed by the chairman of the board, the president or a vice president
and also by the secretary or an assistant secretary or by the treasurer or an
assistant treasurer. Any and all signatures on the certificate may be a
facsimile and may be sealed with the seal of the Corporation or a facsimile
thereof. If any officer, transfer agent, or registrar who has signed, or whose
facsimile signature has been placed upon, a certificate has ceased to be such
officer, transfer agent, or registrar before such certificate is issued, such
certificate 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. The
certificates shall be consecutively numbered and shall be entered in the books
of the Corporation as they are issued and shall exhibit the holder's name and
the number of shares.
8.2 Replacement Of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
8.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books. The board
of directors may appoint a bank or trust company organized under the laws of the
United States or any state thereof to act as its transfer agent or registrar, or
both in connection with the transfer of any class or series of securities of
the Corporation.
8.4 Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
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person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
8.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
8.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems appropriate to assure that the
Corporation does not become liable for violations of federal or state securities
laws or other applicable law.
8.7 Subscriptions for Stock. Unless otherwise provided for in any
subscription agreement, subscriptions for shares shall be paid in full at such
time, or in such installments and at such times, as shall be determined by the
board of directors. Any call made by the board of directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the Corporation may proceed to collect the
amount due in the same manner as any debt due the Corporation.
ARTICLE 9: MISCELLANEOUS PROVISIONS
9.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends upon the capital stock of the
Corporation, may be declared by the board of directors at any regular or special
meeting and may be paid in cash, in property, or in shares of the capital stock
of the Corporation. Such declaration and payment shall be at the discretion of
the board of directors.
9.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
9.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and shall keep at its registered office
or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each. Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours of business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean any purpose
reasonably related to such person's interest as a stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath
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shall be directed to the Corporation at its registered office in the State of
Delaware or at its principal place of business.
9.4 Checks, Drafts or Orders. All checks, drafts, or other orders
for the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the Corporation, and in such
manner, as shall be determined by resolution of the board of directors or a duly
authorized committee thereof.
9.5 Contracts. The board of directors may authorize any officer or
officers, or any agent or agents, of the Corporation to enter into any contract
or to execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
9.6 Loans. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or any of its subsidiaries, including any officer or employee who is
a director of the Corporation or any of its subsidiaries, whenever, in the
judgment of the directors, such loan, guaranty or assistance may reasonably be
expected to benefit the Corporation. The loan, guaranty or other assistance may
be with or without interest, and may be unsecured, or secured in such manner as
the board of directors shall approve, including, without limitation, a pledge of
shares of stock of the Corporation. Nothing in this section contained shall be
deemed to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
9.7 Fiscal Year. The fiscal year of the Corporation shall be fixed
by the board of directors; provided, that if such fiscal year is not fixed by
the board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
9.8 Seal. The board of directors of the Corporation shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
9.9 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the president or the secretary. Such
resignation shall take effect at the time specified therein or, if no time is
specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
9.10 Voting Securities Owned By Corporation. Voting securities in any
other corporation held by the Corporation shall be voted by the president,
unless the board of directors specifically confers authority to vote with
respect thereto, which authority may be general or confined to specific
instances, upon some other person or officer. Any person authorized to vote
securities shall have the power to appoint proxies, with general power of
substitution.
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