EXHIBIT 3.24
MWM HOLDING, INC.
(A DELAWARE CORPORATION)
BYLAWS
ARTICLE I
Offices
SECTION 1.01 Registered Office. The registered address of MWM Holding,
Inc. (the "Corporation") in the State of Delaware is located in Kent County at
615 South Dupont Highway, Dover, Delaware 19901. The Corporation's registered
agent at that address is National Corporate Research, Ltd. The Corporation's
primary business address in the State of Delaware is 615 South DuPont Highway,
Dover, Delaware 19901. The Corporation may also have offices in such other
places in the United States or elsewhere as the Board of Directors may, from
time to time, appoint or as the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01 Annual Meetings. An annual meeting of the stockholders is to
be held once each fiscal year. Annual meetings of stockholders may be held at
such place, either within or without the State of Delaware, and at such time and
date as the Board of Directors shall determine. The Board of Directors may, in
its sole discretion, determine that the meeting shall not be held at any place,
but may instead be held solely by means of remote communication as described in
Section 2.02 of these Bylaws in accordance with Section 211(a)(2) of the
Delaware General Corporation Law. Stockholders may act by written or electronic
transmission of consent to elect directors; provided, however, that if such
consent is less than unanimous, such action by written or electronic
transmission of consent may be in lieu of holding an annual meeting only if all
of the directorships to which directors could have been elected at an annual
meeting held at the effective time of such action are vacant and are filled by
such action.
SECTION 2.02 Special Meetings. Special meetings of stockholders, unless
otherwise prescribed by statute, may be called by the President or by resolution
of the Board of Directors and shall be called by the President or Secretary upon
the written request of not less than 10% in interest of the stockholders
entitled to vote thereat. Notice of each special meeting shall be given in
accordance with Section 2.03 of these Bylaws. Unless otherwise permitted by law,
business transacted at any special meeting of stockholders shall be limited to
the purpose stated in the notice.
If authorized by the Board of Directors hi its sole discretion, and
subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and
proxy holders not physically present at a meeting of stockholders may, by means
of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or
solely by means of remote communication,
provided, that
(i) the Corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means
of remote communication is a stockholder or proxyholder;
(ii) the Corporation shall implement reasonable measures to provide
such stockholders and proxyholders a reasonable opportunity to participate in
the meeting and to vote on matters submitted to the stockholders, including
an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings; and
(iii) if any stockholder or proxyholder votes or takes other action
at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the Corporation.
SECTION 2.03 Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice or electronic
transmission, in the manner provided in Section 232 of the Delaware General
Corporation Law, of notice of the meeting, which shall state the place, if any,
date and time of the meeting, and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, and, in the case of a special meeting, the purposes for
which the meeting is called, shall be mailed to or transmitted electronically to
each stockholder of record entitled to vote thereat. Such notice shall be given
not less than 10 days nor more than 60 days before the date of any such meeting.
SECTION 2.04 Quorum. Unless otherwise required by law or the Certificate
of Incorporation, the holders of a majority of the issued and outstanding stock
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. When a quorum is once present to organize a meeting, the quorum is
not broken by the subsequent withdrawal of any stockholders.
SECTION 2.05 Voting. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Upon the request of not less than 10% in
interest of the stockholders entitled to vote at a meeting, voting shall be by
written ballot, unless
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otherwise provided in the Certificate of Incorporation; if authorized by the
stockholders, such requirement of a written ballot shall be satisfied, if
authorized by the Board of Directors, by a ballot submitted by electronic
transmission, provided that any such electronic transmission must either set
forth or be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder or proxyholder.
All elections of directors shall be determined by a plurality of the votes
cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast affirmatively or negatively.
SECTION 2.06 Chairman of Meetings. The President of the Corporation shall
preside at all meetings of the stockholders.
SECTION 2.07 Secretary of Meeting. The Secretary of the Corporation shall
act as Secretary at all meetings of the stockholders. In the absence or
disability of the Secretary, the President shall appoint a person to act as
Secretary at such meetings.
SECTION 2.08 Consent of Stockholders in Lieu of Meeting. 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 the 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, 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 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 shall be made by hand or by certified or registered mail,
return receipt requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the date the
earliest dated consent is delivered to the Corporation, a written consent or
consents signed by a sufficient number of holders to take action are delivered
to the Corporation in the manner prescribed in the first paragraph of this
Section 2.08. A telegram, cablegram or other electronic transmission consenting
to an action to be taken and transmitted by a stockholder or proxyholder, or by
a person or persons authorized to act for a stockholder or proxyholder, shall be
deemed to be written, signed and dated for the purposes of this Section 2.08 to
the extent permitted by law. Any such consent shall be delivered in accordance
with Section 228(d)(l) of the Delaware General Corporation Law. 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 or electronic transmission and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date of
such meeting had been the date that written consents
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signed by a sufficient number of stockholders or members to take the action were
delivered to the Corporation as provided by law.
Any copy, facsimile or other reliable reproduction of a consent in writing
may be substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided that such copy,
facsimile or other reproduction shall be a complete reproduction of the entire
original writing.
SECTION 2.09 Adjournment. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or 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 Any business may be transacted at
the adjourned meeting that might have been transacted at the meeting originally
noticed. If the adjournment is for more than 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 meeting.
ARTICLE III
Board of Directors
SECTION 3.01 Powers. The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors. The Board of
Directors shall exercise all of the powers and duties conferred by law except as
provided by the Certificate of Incorporation or these Bylaws.
SECTION 3.02 Number and Term. The number of directors shall initially be
fixed at two (2) and may be adjusted from time to time by the Board of
Directors. The Board of Directors shall be elected by the stockholders at their
annual meeting, and each director shall be elected to serve for the term of one
year and until his or her successor is elected and qualified or until his or her
earlier death, resignation or removal. Directors need not be stockholders.
SECTION 3.03 Resignations. Any director may resign at any time upon notice
given in writing or by electronic transmission. The resignation shall take
effect at the time specified therein, and if no time is specified, at the time
of its receipt by the President or Secretary. The acceptance of a resignation
shall not be necessary to make it effective.
SECTION 3.04 Removal. Any director or the entire Board of Directors may be
removed either with or without cause at any time by the affirmative vote of the
holders of a majority of the shares then entitled to vote for the election of
directors at any annual or special meeting of the stockholders called for that
purpose or by written or electronic transmission of consent as permitted by law.
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SECTION 3.05 Vacancies and Newly Created Directorships. Except as provided
in Section 3.04 of these Bylaws, vacancies occurring in any directorship and
newly created directorships may be filled by a majority vote of the remaining
directors then in office. Any director so chosen shall hold office for the
unexpired term of his or her predecessor and until his or her successor shall be
elected and qualify or until his or her earlier death, resignation or removal.
SECTION 3.06 Meetings. The newly elected directors shall hold their first
meeting to organize the Corporation, elect officers and transact any other
business that may properly come before the meeting. An annual organizational
meeting of the Board of Directors shall be held immediately after each annual
meeting of the stockholders, or at such time and place as may be noticed for the
meeting.
Regular meetings of the Board of Directors may be held without notice at
such places and times as shall be determined from time to time by written or
electronic transmission of consent of a resolution of the directors.
Special meetings of the Board of Directors shall be called by the
President or by the Secretary on the written or electronic transmission of such
request of any director with at least two days notice to each director and shall
be held at such place as may be determined by the directors or as shall be
stated in the notice of the meeting.
SECTION 3.07 Quorum, Voting and Adjournment. A majority of the total
number of directors or any committee thereof shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
In the absence of a quorum, a majority of the directors present thereat may
adjourn such meeting to another time and place. Notice of such adjourned meeting
need not be given if the time and place of such adjourned meeting are announced
at the meeting so adjourned.
SECTION 3.08 Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, designate one or more committees,
including but not limited to an Executive Committee and an Audit Committee, each
such committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee to replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee,
the member or members present at any meeting and not disqualified from voting,
whether or not he, she 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. Any such committee, to the extent
provided in the resolution of the Board of Directors establishing such
committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority in
reference to the following matters: (a) approving or adopting, or recommending
to the stockholders, any action or matter expressly required by law to be
submitted to stockholders for approval or
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(b) adopting, amending or repealing any bylaw of the Corporation. All committees
of the Board of Directors shall keep minutes of their meetings and shall report
their proceedings to the Board of Directors when requested or required by the
Board of Directors.
SECTION 3.09 Action Without a Meeting. 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 of Directors or any committee
thereof, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed in the minutes of proceedings of the Board of Directors.
Such filing shall be in paper form if the minutes are maintained in paper form
or shall be in electronic form if the minutes are maintained in electronic form.
SECTION 3.10 Compensation. The Board of Directors shall have the authority
to fix the compensation of directors for their services. A director may also
serve the Corporation in other capacities and receive compensation therefor.
SECTION 3.11 Remote Meeting. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting by
means of conference telephone or other communications equipment in which all
persons participating in the meeting can hear each other. Participation in a
meeting by means of conference telephone or other communications equipment shall
constitute the presence in person at such meeting.
ARTICLE IV
Officers
SECTION 4.01 Number. The officers of the Corporation shall include a
President and a Secretary, both of whom shall be elected by the Board of
Directors and who shall hold office for a term of one year and until their
successors are elected and qualify or until their earlier resignation or
removal. In addition, the Board of Directors may elect one or more Vice
Presidents, a Treasurer and one or more Assistant Treasurers and one or more
Assistant Secretaries, who shall hold their office for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors. The initial officers shall be elected at the
first meeting of the Board of Directors and, thereafter, at the annual meeting
of the Board of Directors. Any number of offices may be held by the same person.
SECTION 4.02 Other Officers and Agents. The Board of Directors may appoint
such other officers and agents as it deems advisable, who shall hold their
office for such terms and shall exercise and perform such powers and duties as
shall be determined from time to time by the Board of Directors.
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SECTION 4.04 President. The President shall be the Chief Executive Officer
of the Corporation. He or she shall exercise such duties as customarily pertain
to the office of President and Chief Executive Officer, and shall have general
and active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board of Directors. He or she
shall perform such other duties as prescribed from time to time by the Board of
Directors or these Bylaws. The President shall preside at all meetings of the
stockholders and of the Board of Directors. Except as the Board of Directors
shall otherwise authorize, the President shall execute bonds, mortgages and
other contracts on behalf of the Corporation, and shall cause the seal to be
affixed to any instrument requiring it and, when so affixed, the seal shall be
attested by the signature of the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer.
SECTION 4.05 Vice Presidents. Each Vice President, if any are elected, of
whom one or more may be designated an Executive Vice President, shall have such
powers and shall perform such duties as shall be assigned to him or her by the
President or the Board of Directors.
SECTION 4.06 Treasurer. The Treasurer shall have the general care and
custody of the funds and securities of the Corporation, and shall deposit all
such funds in the name of the Corporation in such banks, trust companies or
other depositories as shall be selected by the Board of Directors. He or she
shall receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever. He or she shall exercise general supervision over
expenditures and disbursements made by officers, agents and employees of the
Corporation and the preparation of such records and reports in connection
therewith as may be necessary or desirable. He or she shall, in general, perform
all other duties incident to the office of Treasurer and such other duties as
from time to time may be assigned to him or her by the Board of Directors.
SECTION 4.07 Secretary. The Secretary shall be the Chief Administrative
Officer of the Corporation and shall: (a) cause minutes of all meetings of the
stockholders and directors to be recorded and kept; (b) cause all notices
required by these Bylaws or otherwise to be given properly, (c) see that the
minute books, stock books, and other nonfinancial books, records and papers of
the Corporation are kept properly, and (d) cause all reports, statements,
returns, certificates and other documents to be prepared and filed when and as
required. The Secretary shall have such further powers and perform such other
duties as prescribed from time to time by the Board of Directors.
SECTION 4.08 Assistant Treasurers and Assistant Secretaries. Each
Assistant Treasurer and each Assistant Secretary, if any are elected, shall be
vested with all the powers and shall perform all the duties of the Treasurer and
Secretary, respectively, in the absence or disability of such officer, unless or
until the Board of Directors shall otherwise determine. In addition, Assistant
Treasurers and Assistant Secretaries shall have such powers and shall perform
such duties as shall be assigned to them by the Board of Directors.
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SECTION 4.09 Corporate Funds and Checks. The funds of the Corporation
shall be kept in such depositories as shall from time to time be prescribed by
the Board of Directors. All checks or other orders for the payment of money
shall be signed by the President or the Treasurer or such other person or agent
as may from time to time be authorized and with such countersignature, if any,
as may be required by the Board of Directors.
SECTION 4.10 Contracts and Other Documents. The President or the
Treasurer, or such other officer or officers as may from time to time be
authorized by the Board of Directors or any other committee given specific
authority by the Board of Directors during the intervals between the meetings of
the Board of Directors, shall have power to sign and execute on behalf of the
Corporation deeds, conveyances and contracts, and any and all other documents
requiring execution by the Corporation.
SECTION 4.11 Compensation. The compensation of the officers of the
Corporation shall be fixed from tune to tune by the Board of Directors (subject
to any employment agreements that may then be in effect between the Corporation
and the relevant officer). None of such officers shall be prevented from
receiving such compensation by reason of the fact that he or she is also a
director of the Corporation. Nothing contained herein shall preclude any officer
from serving the Corporation, or any subsidiary, in any other capacity and
receiving such compensation by reason of the fact that he or she is also a
director of the Corporation.
SECTION 4.12 Ownership of Stock of Another Corporation. Unless otherwise
directed by the Board of Directors, the President or the Treasurer, or such
other officer or agent as shall be authorized by the Board of Directors, shall
have the power and authority, on behalf of the Corporation, to attend and to
vote at any meeting of stockholders of any corporation in which the Corporation
holds stock and may exercise, on behalf of the Corporation, any and all of the
rights and powers incident to the ownership of such stock at any such meeting,
including the authority to execute and deliver proxies and consents on behalf of
the Corporation.
SECTION 4.13 Delegation of Duties. In the absence, disability or refusal
of any officer to exercise and perform his or her duties, the Board of Directors
may delegate to another officer such powers or duties.
SECTION 4.14 Resignation and Removal. Any officer of the Corporation may
be removed from office for or without cause at any time by the Board of
Directors. Any officer may resign at any time in the same manner prescribed
under Section 3.03 of these Bylaws.
SECTION 4.15 Vacancies. The Board of Directors shall have power to fill
vacancies occurring in any office.
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ARTICLE V
Stock
SECTION 5.01 Certificates of Stock. 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 President or Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the
number and class of shares of stock in the Corporation owned by him or her. Any
or all of the signatures on the certificate may be a facsimile. The Board of
Directors shall have the power to appoint one or more transfer agents and/or
registrars for the transfer or registration of certificates of stock of any
class, and may require stock certificates to be countersigned or registered by
one or more of such transfer agents and/or registrars.
SECTION 5.02 Transfer of Shares. Shares of stock of the Corporation shall
be transferable upon its books by the holders thereof, in person or by their
duly authorized attorneys or legal representatives, upon surrender to the
Corporation by delivery thereof to the person in charge of the stock and
transfer books and ledgers. Such certificates shall be cancelled and new
certificates shall thereupon be issued. A record shall be made of each transfer.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented, both the transferor and transferee request the
Corporation to do so. The Board of Directors shall have power and authority to
make such rules and regulations as it may deem necessary or proper concerning
the issue, transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 5.03 Lost, Stolen, Destroyed or Mutilated Certificates. A new
certificate of stock may be issued in the place of any certificate previously
issued by the Corporation alleged to have been lost, stolen or destroyed, and
the Board of Directors may, in their discretion, require the owner of such lost,
stolen or destroyed certificate, or his or her legal representative, to give the
Corporation a bond, in such sum as the Board of Directors may direct, in order
to indemnify the Corporation against any claims that may be made against it in
connection therewith. A new certificate of stock may be issued in the place of
any certificate previously issued by the Corporation that has become mutilated
without the posting by the owner of any bond upon the surrender by such owner of
such mutilated certificate.
SECTION 5.04 List of Stockholders Entitled To Vote. The stock ledger shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Delaware General Corporation Law Section 219
or the books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
SECTION 5.05 Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may at any regular or special meeting,
declare dividends upon the stock of the Corporation either (a) out of its
surplus, as defined in and computed in accordance with Delaware General
Corporation Law Section 154 and Section 244 or (b) in case there shall be no
such surplus, out of its net profits for the fiscal year in which
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the dividend is declared and/or the preceding fiscal year. Before the
declaration of any dividend, the Board of Directors may set apart, out of any
funds of the Corporation available for dividends, such sum or sums as from time
to time in their discretion may be deemed proper for working capital or as a
reserve fund to meet contingencies or for such other purposes as shall be deemed
conducive to the interests of the Corporation.
SECTION 5.06 Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to consent to
corporate action without a meeting, (including by telegram, cablegram or other
electronic transmission as permitted by law), the Board of Directors may fix a
record date, which shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date
shall be not more than 10 days after the date upon which the resolution fixing
the record date is adopted. If no record date has been fixed by the Board of
Directors and no prior action by the Board of Directors is required by the
Delaware General Corporation Law, the record date shall be the first date on
which a consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in the manner prescribed by Section 2.08 of these
Bylaws. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by the Delaware General Corporation
Law with respect to the proposed action by consent of the stockholders without a
meeting, the record date for determining stockholders entitled to consent to
corporate action 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.
SECTION 5.07 Registered Stockholders. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. The Corporation 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 person, whether or not it shall have express or other notice thereof.
ARTICLE VI
Notice and Waiver of Notice
SECTION 6.01 Notice. If mailed, notice to stockholders shall be deemed
given when deposited in the mail, postage prepaid, directed to the stockholder
at such stockholder's address as it appears on the records of the Corporation.
Without limiting the manner by which notice otherwise may be given effectively
to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the Delaware General
Corporation Law.
SECTION 6.02 Waiver of Notice. A written waiver of any notice, signed by a
stockholder or director, or waiver by electronic transmission by such person,
whether given before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be given to such
person. Neither the
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business nor the purpose of any meeting need by specified in such a waiver.
Attendance at any meeting shall constitute waiver of notice except attendance
for the sole purpose of objecting to the timeliness of notice.
ARTICLE VII
Indemnification
SECTION 7.01 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, or trustee of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer or
trustee, or in any other capacity while serving as a director, officer or
trustee, must be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 7.03 of these
Bylaws with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors.
SECTION 7.02 Right to Advancement of Expenses. In addition to the right to
indemnification conferred in Section 7.01 of these Bylaws, an indemnitee shall
also have the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition (an "advancement of expenses"); provided, however, that, if
the Delaware General Corporation Law as then in effect requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking (an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section 7.02 or otherwise.
SECTION 7.03 Right of Indemnitee to Bring Suit. If a claim under Section
7.01 or 7.02 of these Bylaws is not paid in full by the Corporation within 60
days
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after a written claim has been received by the Corporation, except in the case
of a claim for an advancement of expenses, in which case the applicable period
shall be 20 days, the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (a) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (b) any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that identification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its directors who
are not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VII or otherwise shall be on the Corporation.
SECTION 7.04 Non-Exclusivity of Rights. The rights to indemnification and
to the advancement of expenses conferred in this Article VII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 7.05 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 7.06 Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this
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Article VII with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
SECTION 7.07 Nature of Rights. The rights conferred upon indemnitees in
this Article VII shall be contract rights and such rights shall continue as to
an indemnitee who has ceased to be a director, officer or trustee and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
Any amendment, alteration or repeal of this Article VII that adversely affects
any right of an indemnitee or it successors shall be prospective only and shall
not limit or eliminate any such right with respect to any proceeding involving
any occurrence or alleged occurrence of any action or omission to act that took
place prior to such amendment, alteration or repeal.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Amendments. In furtherance and not in limitation of the
powers conferred by law, the Board of Directors is expressly authorized to
adopt, amend and repeal these Bylaws subject to the power of the holders of
capital stock of the Corporation to adopt, amend or repeal the Bylaws.
SECTION 8.02 Electronic Transmission. For purposes of these Bylaws,
"electronic transmission" means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
SECTION 8.03 Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer
or by an Assistant Secretary or Assistant Treasurer.
SECTION 8.04 Fiscal Year. The fiscal year of the Corporation shall end on
December 31 of each year, or such other 12 consecutive months as the Board of
Directors may designate.
SECTION 8.05 Loans. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiary(ies), including any officer or employee who is
a director of the Corporation or its subsidiary(ies), 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 the capital stock of the Corporation. Nothing in this Section 8.05
shall be deemed to deny, limit or restrict the powers of guaranty or warranty of
the Corporation at common law or under any statute.
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SECTION 8.06 Section Headings. Section headings in these Bylaws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
SECTION 8.07 Inconsistent Provisions; Changes in Delaware Law. If any
provision of these Bylaws is or becomes inconsistent with any provision of the
Certificate of Incorporation, the General Corporation Law of the State of
Delaware or any other applicable law, the provision of these Bylaws shall not be
given any effect to the extent of such inconsistency but shall otherwise be
given full force and effect. If any of the provisions of the General Corporation
Law of the State of Delaware referred to above are modified or superseded, the
references to those provisions is to be interpreted to refer to the provisions
as so modified or superseded.
Date of Adoption: December 27, 2002
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