Exhibit 3.2
BY-LAWS
OF
MOORE NORTH AMERICA FINANCE, INC.
(pursuant to the General Corporation Law of the State of Delaware)
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the Corporation
shall be located in Stamford, Connecticut or such other place as is specified
from time to time by the Board of Directors.
SECTION 2. REGISTERED AGENT AND OFFICE. The registered agent and the
registered office of the Corporation within the State of Delaware shall be as
provided in the Certificate of Incorporation.
SECTION 3. OTHER OFFICES. The Corporation may also have an office or
offices other than said registered office at such place or places, either within
or without the State of Delaware, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders for
the election of directors or for any other purpose shall be held at any such
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of meeting
or in a duly executed waiver thereof.
SECTION 2. ANNUAL MEETING. The annual meeting of stockholders shall
be held on such date and at such hour as called by the Chairman of the Board, if
not a legal holiday, and if a legal holiday, then on the next succeeding day not
a legal holiday, or at such other date and time as shall be designated from time
to time by the Board of Directors and stated in the notice of meeting or in a
duly executed waiver thereof. At such annual meeting, the stockholders shall
elect, by a plurality vote, a Board of Directors and transact such other
business as may properly be brought before the meeting.
SECTION 3. SPECIAL MEETINGS. Special meetings of stockholders,
unless otherwise prescribed by applicable law, may be called at any time by (a)
the Board of Directors, (b) the Chairman of the Board, if one shall have been
elected, (c) the President; and shall be called by the Secretary upon the
request in writing of a stockholder or stockholders holding of record at least
50% of the voting power of the issued and outstanding shares of stock of the
Corporation entitled to vote at such meeting.
Adopted December 17, 2002
SECTION 4. NOTICE OF MEETINGS. Except as otherwise expressly
required by applicable law, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder of record entitled to vote thereat not less
than 10 nor more than 60 days before the date of the meeting. Notice shall be
given personally or by mail and, if by mail, shall be sent in a postage prepaid
envelope, addressed to the stockholder at the stockholder's address as it
appears on the records of the Corporation. Notice by mail shall be deemed given
at the time when the same shall be deposited in the United States mail, postage
prepaid. Notice of any meeting shall not be required to be given to any person
who, either before or after the meeting, shall submit a signed written waiver of
notice, in person or by proxy (neither the business to be transacted at, nor the
purpose of, an annual or special meeting of stockholders, need be specified in
any written waiver of notice), or to any person who attends such meeting except
when such person attends the meeting in person or by proxy 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. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
SECTION 5. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least 10 days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing the address of 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 10 days prior
to the meeting, either at a place within the city, town or village where the
meeting is to be held, which place shall be specified in the notice of meeting,
or, if not specified, at the place where the meeting is to be held. The list
shall 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 6. QUORUM, ADJOURNMENTS. The holders of a majority of the
voting power of the issued and outstanding stock of the Corporation entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at all meetings of stockholders, except
as otherwise provided by applicable law or by the Certificate of Incorporation.
If, however, a quorum shall not be present or represented by proxy at any
meeting of stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have the power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented by proxy. At such adjourned meeting at
which a quorum shall be present or represented by proxy, any business may be
transacted which might have been transacted at the meeting as originally called.
If the adjournment is for more than 30 days, or, if after adjournment a new
record date is set, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Adopted December 17, 2002
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SECTION 7. ORGANIZATION. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in the Chairman of
the Board's absence or if one shall not have been elected, the President, shall
act as chairman of the meeting. The Secretary or, in the Secretary's absence or
inability to act, the person whom the chairman of the meeting shall appoint
secretary of the meeting shall act as secretary of the meeting and keep the
minutes thereof.
SECTION 8. ORDER OF BUSINESS. The order of business at all meetings
of the stockholders shall be as determined by the chairman of the meeting.
SECTION 9. VOTING. Except as otherwise provided by applicable law or
the Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of capital
stock of the Corporation standing in such stockholder's name on the record of
stockholders of the Corporation: (a) on the date fixed pursuant to the
provisions of Article V, Section 7 as the record date for the determination of
the stockholders who shall be entitled to notice of and to vote at such meeting;
or (b) if no such record date shall have been so fixed, then at the close of
business on the day next preceding the day on which notice thereof shall be
given, or, if notice is waived, at the close of business on the date next
preceding the day on which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for such stockholder by a proxy
signed by such stockholder or such stockholder's attorney-in-fact, but no proxy
shall be voted after three years from its date or from the termination date
stated therein, whichever is shorter, unless the proxy provides for, and
applicable law permits, a longer period. Any such proxy shall be delivered to
the secretary of the meeting at or prior to the time designated in the order of
business for so delivering such proxies. When a quorum is present at any
meeting, the vote of the holders of a majority of the voting power of the issued
and outstanding stock of the Corporation entitled to vote thereon, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the issue is one upon which, by express provision of applicable
law or of the Certificate of Incorporation or of these By-laws, a different vote
is required, in which case such express provision shall govern and control the
decision of such issue. Unless required by applicable law, or determined by the
chairman of the meeting to be advisable, the vote on any question need not be by
ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder's proxy, and shall state the number of shares
voted.
SECTION 10. 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 such
inspector's 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 such inspector's ability. The inspectors shall
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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, 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.
SECTION 11. ACTION BY CONSENT. Whenever the vote of stockholders at
a meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of applicable law or of the Certificate
of Incorporation or of these By-laws, the meeting and vote of stockholders may
be dispensed with, and the action taken without such meeting and 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 of stock of the Corporation entitled to vote thereon were present and
voted
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. The Board of Directors may exercise all such authority and powers of
the Corporation and do all such lawful acts and things as are not by applicable
law or the Certificate of Incorporation directed or required to be exercised or
done by the stockholders.
SECTION 2. NUMBER, QUALIFICATIONS, ELECTION AND TERM OF OFFICE. The
number of directors constituting the initial Board of Directors shall be three.
Thereafter, the number of directors may be fixed, from time to time, by the
affirmative vote of a majority of the entire Board of Directors or by action of
the stockholders of the Corporation. Any decrease in the number of directors
shall be effective at the time of the next succeeding annual meeting of
stockholders unless there shall be vacancies in the Board of Directors, in which
case such decrease may become effective at any time prior to the next succeeding
annual meeting to the extent of the number of such vacancies. Directors need not
be stockholders. Except as otherwise provided by applicable law or these By-laws
(including, without limitation, Article III, Section 11), the directors (other
than members of the initial Board of Directors) shall be elected at the annual
meeting of stockholders. Each director shall hold office until such director's
successor shall have been elected and qualified, or until such director's death,
or until such director shall have resigned or been removed as hereinafter
provided in these By-laws.
Adopted December 17, 2002
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SECTION 3. PLACE OF MEETINGS. Meetings of the Board of Directors
shall be held at 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 any such meeting.
SECTION 4. ANNUAL MEETING. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of stockholders, on
the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be
specified in a notice thereof given as hereinafter provided in Article III,
Section 7.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise be
held on that day shall be held at the same hour on the next succeeding business
day. Notice of regular meetings of the Board of Directors need not be given
except as otherwise required by applicable law or these By-laws.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by (a) the Chairman of the Board if one shall have been
elected, (b) the President, or (c) two or more directors of the Corporation.
SECTION 7. NOTICE OF MEETINGS. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Article III, Section 7, in which notice shall be stated the time and place of
the meeting. Except as otherwise required by these By-laws, such notice need not
state the purposes of such meeting. Notice of each such meeting shall be mailed,
postage prepaid, to each director, addressed to such director at such director's
residence or usual place of business, by first class mail, at least two days
before the day on which such meeting is to be held, or shall be sent addressed
to such director at such place by telegraph, cable, telex, telecopier or other
similar means, or be delivered to such director personally or be given to such
director by telephone or other similar means, at least twenty-four hours before
the time at which such meeting is to be held. 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, except when
such director shall attend 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.
SECTION 8. QUORUM AND MANNER OF ACTING. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, and, except as otherwise expressly
required by applicable law or the Certificate of Incorporation or these By-laws,
the act of a majority
Adopted December 17, 2002
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of the directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors. In the absence of a quorum at any meeting of
the Board of Directors, a majority of the directors present thereat may adjourn
such meeting to another time and place. Notice of the time and place of any such
adjourned meeting shall be given to all of the directors unless such time and
place were announced at the meeting at which the adjournment was taken, in which
case such notice shall only be given to the directors who were not present
thereat. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called. The directors shall act only as a Board of Directors and the individual
directors shall have no power as such.
SECTION 9. ORGANIZATION. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the absence of
the Chairman of the Board or if one shall not have been elected, the President
or, in the President's absence, another director chosen by a majority of the
directors present, shall act as chairman of the meeting and preside thereat. The
Secretary or, in the Secretary's absence, any person appointed by the chairman
of the meeting shall act as secretary of the meeting and keep the minutes
thereof.
SECTION 10. RESIGNATIONS. Any director of the Corporation may resign
at any time by giving written notice of such director's resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 11. VACANCIES. Any vacancy in the Board of Directors,
whether arising from death, resignation, removal (with or without cause), an
increase in the number of directors or any other cause, may be filled by the
vote of a majority of the directors then in office, though less than a quorum,
or by the sole remaining director or by the stockholders at the next annual
meeting thereof or at a special meeting thereof. Each director so elected shall
hold office until such director's successor shall have been elected and
qualified.
SECTION 12. REMOVAL OF DIRECTORS. Any director may be removed,
either with or without cause, at any time, by the holders of a majority of the
voting power of the issued and outstanding capital stock of the Corporation
entitled to vote at an election of directors.
SECTION 13. COMPENSATION. The Board of Directors shall have
authority to fix the compensation, including, without limitation, fees and
reimbursement of expenses, of directors for services to the Corporation in any
capacity.
SECTION 14. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, including, without limitation, an executive committee, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or
Adopted December 17, 2002
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more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In addition, in the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
Except to the extent restricted by applicable law or the Certificate
of Incorporation, each such committee, to the extent provided in the resolution
creating it, shall have and may exercise all the power and authority of the
Board of Directors and may authorize the seal of the Corporation to be affixed
to all papers which require it. Each such committee shall serve at the pleasure
of the Board of Directors and have such name as may be determined from time to
time by resolution adopted by the Board of Directors. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors.
SECTION 15. ACTION BY CONSENT. Unless restricted by applicable law
or by the Certificate of Incorporation, any action required or permitted to be
taken by the Board of Directors or any committee thereof may be taken without a
meeting if all members of the Board of Directors or such committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of the Board of Directors or such committee, as
the case may be.
SECTION 16. TELEPHONIC MEETING. Unless restricted by applicable law
or by the Certificate of Incorporation, any one or more members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute
presence in person at a meeting.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the
Corporation shall be elected by the Board of Directors and shall include the
President, one or more Vice-Presidents, the Secretary and the Treasurer. If the
Board of Directors wishes, it may also elect as an officer of the Corporation a
Chairman of the Board and may elect other officers (including, without
limitation, one or more Assistant Treasurers and one or more Assistant
Secretaries) as may be necessary or desirable for the business of the
Corporation. Any two or more offices may be held by the same person, and no
officer except the Chairman of the Board need be a director. Each officer shall
hold office until such officer's successor shall have been duly elected and
shall have qualified, or until such officer's death, or until such officer shall
have resigned or have been removed as hereinafter provided in these By-laws.
Adopted December 17, 2002
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SECTION 2. RESIGNATIONS. Any officer of the Corporation may resign
at any time by giving written notice of such officer's resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
thereon, immediately upon receipt. Unless otherwise specified therein, the
acceptance of any such resignation shall not be necessary to make it effective.
SECTION 3. REMOVAL. Any officer of the Corporation may be removed,
with or without cause, at any time, by the Board of Directors.
SECTION 4. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
shall have been elected, shall be a director of the Corporation and, if present,
shall preside at each meeting of the Board of Directors and of the stockholders.
The Chairman of the Board shall advise and counsel with the President, and, in
the President's absence, with other executives of the Corporation, and shall
perform such other duties as may from time to time be assigned to the Chairman
of the Board by the Board of Directors.
SECTION 5. THE PRESIDENT. The President shall be the chief executive
officer of the Corporation. The President, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, shall preside
over each meeting of the Board of Directors and of the stockholders. The
President shall perform all duties incident to the office of President and chief
executive officer and such other duties as may from time to time be assigned to
the President by the Board of Directors.
SECTION 6. VICE-PRESIDENT. Each Vice-President shall perform all
such duties as from time to time may be assigned to such Vice-President by the
President or the Board of Directors. At the request of the President or in the
President's absence or in the event of the President's inability or refusal to
act, the Vice-President, or if there shall be more than one, the Vice-Presidents
in the order determined by the Board of Directors (or if there be no such
determination, then the Vice-Presidents and the order of their election), shall
perform the duties of the President, and, when so acting, shall have the powers
of and be subject to the restrictions placed upon the President in respect of
the performance of such duties.
SECTION 7. TREASURER. The Treasurer shall (a) have charge and
custody of, and be responsible for, all the funds and securities of the
Corporation, (b) keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation, (c) deposit all moneys and other
valuables to the credit of the Corporation in such depositories as may be
designated by the Board of Directors or pursuant to its direction, (d) receive,
and give receipts for, moneys due and payable to the Corporation from any source
whatsoever, (e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor, (f) render to the
Board of Directors, whenever the Board of Directors may require, an account of
the financial condition of the Corporation, and (g) in general, perform all
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to the Treasurer by the Board of Directors.
Adopted December 17, 2002
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SECTION 8. SECRETARY. The Secretary shall (a) keep or cause to be
kept in one or more books provided for the purpose, the minutes of all meetings
of the Board of Directors, the committees of the Board of Directors and the
stockholders, (b) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law, (c) be custodian of the
records and the seal of the Corporation and affix and attest the seal to all
certificates for shares of the Corporation (unless the seal of the Corporation
on such certificates shall be a facsimile, as hereinafter provided) and affix
and attest the seal to all other documents to be executed on behalf of the
Corporation under its seal, (d) see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed, and (e) in general, perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to the Secretary by the Board of Directors.
SECTION 9. ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or the event of the
Treasurer's inability or refusal to act, perform the duties and exercised the
powers of the Treasure and shall perform such other duties as from time to time
may be assigned by the Board of Directors.
SECTION 10. ASSISTANT SECRETARY. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as from time to time
may be assigned by the Board of Directors.
SECTION 11. OFFICERS' BONDS OR OTHER SECURITY. If required by the
Board of Directors, any officer of the Corporation shall give a bond or other
security for the faithful performance of such officer's duties, in such amount
and with such surety as the Board of Directors may require.
SECTION 12. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that such officer is also a
director of the Corporation.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. STOCK CERTIFICATES. Unless otherwise specified 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 by, the
Chairman of the Board or the President or a Vice-President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares in the Corporation owned by such
person. If the Corporation shall be authorized to issue
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more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restriction of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation Law
of the State of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. FACSIMILE SIGNATURES. Any or all of the signatures on a
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 such person were such officer, transfer agent or registrar at the date of
issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, 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, stolen, or
destroyed certificate or certificates, or such owner's legal representative, to
give the Corporation a bond in such sum as it may direct sufficient to indemnify
it against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 4. TRANSFERS OF STOCK. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment and authority to
transfer (as determined by the Corporation or such transfer agent in its sole
discretion), or, if no certificates have been issued representing shares, upon
delivery to the Corporation or the transfer agent of the Corporation of proper
evidence of succession, assignment and authority to transfer (as determined by
the Corporation or such transfer agent in its sole discretion), it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its records;
provided, however, that the Corporation shall be entitled to recognize and
enforce any lawful restriction on transfer. Whenever any transfer of stock shall
be made for collateral security, and not absolutely, it shall be so expressed in
the entry of transfer if, when the certificates are presented to the Corporation
for transfer, both the transferor and the transferee request the Corporation to
do so.
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SECTION 5. TRANSFER AGENTS AND REGISTRARS. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-laws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
SECTION 7. FIXING THE RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or 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 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 8. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner,
shall be entitled to hold liable for calls and assessments a person registered
on its records as the owner of shares of stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares of
stock on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the Laws of Delaware.
Adopted December 17, 2002
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. GENERAL. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person 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 expenses (including, without
limitation, attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
SECTION 2. DERIVATIVE ACTIONS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person 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 expenses (including, without limitation, attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation, provided that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
SECTION 3. INDEMNIFICATION IN CERTAIN CASES. To the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Article VI, Section 1 and Section 2, or in defense of any claim, issue or
matter therein, such person shall be
Adopted December 17, 2002
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indemnified against expenses (including, without limitation, attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
SECTION 4. PROCEDURE. Any indemnification under Article VI, Section
1 and Section 2 (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in such Article VI, Section 1 and Section 2. Such determination shall be
made (a) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
SECTION 5. ADVANCES FOR EXPENSES. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director, officer, employee or agent to
repay such amount if it shall be ultimately determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article VI.
SECTION 6. RIGHTS NOT-EXCLUSIVE. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
SECTION 7. INSURANCE. The Corporation shall have power to purchase
and maintain insurance 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
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article VI.
SECTION 8. DEFINITION OF CORPORATION. For the purposes of this
Article VI, references to the Corporation include, without limitation, all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent 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 the provisions of this
Article VI with respect to the resulting or surviving corporation as such person
would have if such person had served the resulting or surviving corporation in
the same capacity.
Adopted December 17, 2002
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SECTION 9. SURVIVAL OF RIGHTS. The indemnification and advancement
of expenses provided by, or granted pursuant to this Article VI shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 10. CERTIFICATE OF INCORPORATION. The provisions of this
Article VI are in addition to, and are not in limitation of, any related
provisions in the Certificate of Incorporation, and, in the event of a conflict
between any other provision of this Certificate of Incorporation and this
Article VI which cannot be reconciled, the provisions of this Article VI shall
control.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Subject to the provisions of applicable law
and the Certificate of Incorporation, dividends upon the shares of capital stock
of the Corporation may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property or in shares of
stock of the Corporation, unless otherwise provided by applicable law or the
Certificate of Incorporation.
SECTION 2. RESERVES. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors, from time to time, in its absolute
discretion, may think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may modify
or abolish any such reserves in the manner in which it was created.
SECTION 3. SEAL. The seal of the Corporation shall be in such form
as shall be approved by the Board of Directors.
SECTION 4. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the Board of
Directors.
SECTION 5. CHECKS, NOTES, DRAFTS, ETC. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by, unless otherwise
specified by the Board of Directors, the Treasurer or by such other officer,
officers, person or persons as from time to time may be designated by the Board
of Directors or by an officer or officers authorized by the Board of Directors
to make such designation.
SECTION 6. EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other agreements, obligations or
instruments, and such authority may be general or confined to specific
instances.
Adopted December 17, 2002
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SECTION 7. VOTING OF EQUITY OF OTHER SECURITY INTERESTS IN OTHER
ENTITIES. Unless otherwise provided by resolution of the Board of Directors, the
Chairman of the Board or the President, from time to time, may (or may appoint
one or more attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a shareholder or other equity or security holder or as a
manager in any other entity, any of whose equity interests or other securities
may be held by the Corporation, at meetings of the holders of the equity
interests or other securities of such other entity. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent. The Chairman of the Board or the President may (or
may instruct the attorneys or agents appointed to) execute or cause to be
executed in the name and on behalf of the Corporation and under its seal or
otherwise, such written proxies, consents, waivers or other instruments as may
be necessary or proper in the circumstances.
ARTICLE VIII
AMENDMENTS
SECTION 1. GENERAL. These By-laws may be amended or repealed or new
by-laws adopted (a) by action of the stockholders entitled to vote thereon at
any annual or special meeting of stockholders or (b) if the Certificate of
Incorporation so provides, by action of the Board of Directors at a regular or
special meeting thereof. Any by-law made by the Board of Directors may be
amended or repealed by action of the stockholders at any annual or special
meeting of stockholders.
Adopted December 17, 2002
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