EX-3(ii)
NAPCO SECURITY SYSTEMS, INC.
BY-LAWS
Amended and Restated Effective August 9, 1999
ARTICLE I
MEETING OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of
NAPCO SECURITY SYSTEMS, INC. (the "Corporation") for the election of directors
and for the transaction of such other business as may come before the meeting
shall be held at 10:00 a.m. on the fourth Wednesday in November in each year or
at such other hour or on such other day within five months after the end of each
fiscal year of the Corporation as the Board of Directors of the Corporation (the
"Board") may order or at such other time as the Board may determine.
Section 2. Special Meetings. Special meetings of the stockholders,
unless otherwise prescribed by statute, may be called at any time by the Board,
the Chairman of the Board or the President.
Section 3. Notice of Meetings. Notice of the place, date and time of
the holding of each annual and special meeting of the stockholders and the
purpose or purposes thereof shall be given personally or by mail in a postage
prepaid envelope to each stockholder entitled to vote at such meeting, not less
than ten nor more than fifty days before the date of such meeting. If mailed, it
shall be deposited in the mails within the above-mentioned period and 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. Except as may otherwise
be required by applicable law, 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. In the case of an adjourned meeting,
unless the Board shall fix after the adjournment a new record date, notice of
such adjourned meeting need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 4. Place of Meetings. Meetings of the stockholders may be
held at such place, within or without the State of Delaware, as the Board or the
officer calling the same shall specify in the notice of such meeting, or in a
duly executed waiver of notice thereof.
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Section 5. Quorum. At all meetings of the stockholders, the holders
of a majority of the shares of stock of the Corporation issued and outstanding
and entitled to vote shall be present in person or by proxy to constitute a
quorum for the transaction of any business, except as otherwise provided by
statute or in the Certificate of Incorporation and except when stockholders are
required to vote by class, in which event a majority of the issued and
outstanding shares of the appropriate class shall be present in person or by
proxy. In the absence of a quorum, the holders of a majority of the shares of
stock present in person or by proxy and entitled to vote, or if no stockholder
entitled to vote is present, then any officer of the Corporation, may adjourn
the meeting from time to time. At any such adjourned meeting at which a quorum
may be present, any business may be transacted which might have been transacted
at the meeting as originally called.
Section 6. Organization. At each meeting of the stockholders, the
Chairman of the Board or the President, or in their absence of inability to act,
a Vice President, or in the absence of any Vice President, any person chosen by
a majority of those stockholders present shall act as chairman of the meeting.
The Secretary, or, in his absence or inability to act, the Assistant Secretary
or any person appointed by the chairman of the meeting, shall act as secretary
of the meeting and keep the minutes thereof.
Section 7. Order of Business. The order of business at all meetings
of the stockholders shall be as determined by the chairman of the meeting.
Section 8. Voting. Except as otherwise provided by statute, the
Certificate of Incorporation or any certificate duly filed in the State of
Delaware pursuant to Section 151 of the Delaware General Corporation Law, each
holder of record of shares of stock of the Corporation having voter power shall
be entitled to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation on the date fixed by the Board as
the record date for the determination of the stockholders who shall be entitled
to notice of and to vote at such meeting; or if such record date shall not have
been so fixed, then at the close of business on the day next prevailing the day
on which notice thereof shall be given, or if notice is waived, at the close of
business on the day 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 him by a proxy signed by such stockholder
or his attorney-in-fact. Any such proxy shall be delivered to the secretary of
such meeting at or prior to the time designated in the order of business for so
delivering such proxies. No proxy shall be valid after the expiration of three
years from the date thereof, unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where an irrevocable proxy is permitted by law. Except as otherwise
provided by statute, these By-Laws or the Certificate of Incorporation, any
corporate action to be taken by vote of the stockholders shall be authorized by
a majority of the total votes, or when stockholders are required to vote by
class by a majority of the votes of the appropriate class, cast at a meeting of
stockholders by the holders of shares present in person or represented by proxy
and entitled to vote on such action. Unless required by statute, or determined
by the chairman of the meeting to be advisable, the vote on any question need
not be by written ballot. On a vote by written ballot, each ballot shall be
signed by the stockholder voting, or by his proxy, if there be such proxy, and
shall state the number of shares voted.
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Section 9. List of Stockholders. The officer or duly authorized
transfer agent who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 10. Inspectors. The Board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting may, and on the
request of any stockholder entitled to vote thereat shall appoint 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 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 they 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 result, 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 or any stockholder entitled to vote thereat, 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 inspector of an election of directors.
Inspectors may, but need not, be stockholders.
Section 11. Conduct of Business.
(a) The chairman of any meeting of stockholders shall determine the order
of business and the procedures at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
The date and time of the opening and closing of the polls for each matter upon
which the stockholders will vote at the meeting shall be announced at the
meeting by the chairman.
(b) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is entitled to vote with respect thereto and who complies with
the notice procedures set forth in this Section 11(b). For business to be
properly brought before an annual meeting by a stockholder, the business must
relate to a proper subject matter for stockholder action and the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered or mailed to
and received at the principal executive offices of the Corporation not less than
sixty (60) days prior to the date of the annual meeting; provided, however, that
in the event
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that less than seventy (70) days' notice or prior public disclosure of the date
of the meeting is given or made to stockholders, notice by the stockholder to be
timely must be received not later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter such stockholder proposes to bring
before the annual meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting; (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business; (iii) the class
and number of shares of the Corporation's capital stock that are beneficially
owned by such stockholder; and (iv) any material interest of such stockholder in
such business. Notwithstanding anything in these Bylaws to the contrary, no
business shall be brought before or conducted at an annual meeting except in
accordance with the provisions of this Section 11(b). The Chairman of the
Corporation or other person presiding over the annual meeting shall, if the
facts so warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 11(b) and, if he or she should so determine, he or she shall so declare
to the meeting and any such business so determined to be not properly brought
before the meeting shall not be transacted.
At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting by or at the direction
of the Board of Directors.
(c) Only persons who are nominated in accordance with the procedures set
forth in this Section shall be eligible for election as Directors. Nominations
of persons for election to the Board of Directors of the Corporation may be made
at a meeting of stockholders at which directors are to be elected only: (i) by
or at the direction of the Board of Directors, or (ii) by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 11(c). Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made by timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered or mailed
to and received at the principal executive offices of the Corporation not less
than sixty (60) days prior to the date of the meeting; provided, however, that
in the event that less than seventy (70) days' notice or prior disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made. Such stockholder's notice
shall set forth: (i) as to each person whom such stockholder proposes to
nominate for election or re-election as a Director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); and (ii) as to the stockholder giving
the notice (x) the name and address, as they appear on the Corporation's books,
of such stockholder and (y) the class and number of shares of the Corporation's
capital stock that are beneficially owned by such stockholder. At the request of
the Board of Directors any person nominated by the Board of Directors for
election as a Director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible for election as a
Director of the Corporation unless nominated in accordance with the provisions
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of this Section 11(c). The Chairman of the Corporation or other person presiding
at the meeting shall, if the facts so warrant, determine that a nomination was
not made in accordance with such provisions and, if he or she shall so
determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by the Board. The Board may exercise all such
authority and powers of the Corporation and do all such lawful acts and things
as are not by statute 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 and term of office of directors shall be as set forth in the Certificate
of Incorporation, as amended. All directors shall be of full age. Directors need
not be stockholders. Except as otherwise provided by statute, the Certificate of
Incorporation, or these By-Laws, the directors shall be elected at the annual
meeting of stockholders for the election of directors at which a quorum is
present and the persons receiving a plurality of the votes cast at such election
shall be elected.
Section 3. Place of Meetings. Meetings of the Board may be held at
such place, within or without the State of Delaware, as the Board may from time
to time determine or as shall be specified in the notice or waiver of notice of
such meeting.
Section 4. First Meeting. The Board 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 the 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. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
Section 5. Regular Meetings. Regular meetings of the Board shall be
held at such time and place as the Board may from time to time determine. 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 need not be given except as otherwise required
by statute or these By-Laws.
Section 6. Special Meetings. Special meetings of the Board may be
called by two or more directors of the Corporation, by the Chairman of the Board
or by the President.
Section 7. Notice of Meetings. Notice of each special meeting of the
Board (and or each regular meeting for which notice shall be required) shall be
given by the Secretary as
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hereinafter provided in this Section 7, in which notice shall be stated the time
and place (within or without the State of Delaware) of the meeting. Notice of
each such meeting shall be delivered to each director either personally or by
telephone, telegraph, cable or wireless, at least twenty-four hours before the
time at which such meeting is to be held or by first-class mail, postage
prepaid, addressed to him at his residence, or usual place of business, at least
three days before the day on 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
without protesting, prior to or at its commencement, the lack of notice to him.
Except as otherwise specifically required by these By-Laws, a notice or waiver
of notice of any regular or special meeting need not state the purposes of such
meeting.
Section 8. Quorum and Manner of Acting. A majority of the entire
Board shall be present in person at any meeting of the Board in order to
constitute a quorum for the transaction of business at such meeting, and, except
as otherwise expressly required by statute or the Certificate of Incorporation,
the act of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the Board. In the absence of a quorum at any
meeting of the Board, a majority of the directors present thereat, or if no
director be present, the Secretary, may adjourn such meeting to another time and
place, or such meeting, unless it be the first meeting of the Board, need not be
held. At any adjourned meeting at which a quorum is present, any business may be
transacted at the meeting as originally called. Except as provided in Article
III of these By-Laws, the directors shall act only as a Board and the individual
directors shall have no power as such.
Section 9. Organization. At each meeting of the Board, the Chairman
of the Board or the President (or, in their absence or inability to act, a
director chosen by a majority of the directors present) shall act as chairman of
the meeting and preside thereat. The Secretary (or, in his absence or inability
to act, any person appointed by the chairman) 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 his resignation to the Board, the
Chairman of the Board, the President or the Secretary. 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;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 11. Vacancies. Vacancies may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office as provided in the
Certificate of Incorporation of the Corporation. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any holder or holders of at least ten
percent of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office. Except as otherwise provided in
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the Certificate of Incorporation of the Corporation or these By-Laws, when one
or more directors shall resign from the Board, effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this section in the filling
of other vacancies.
Section 12. Removal of Directors. Except as otherwise provided in
the Certificate of Incorporation or in these By-Laws, any director may be
removed, either with or without cause, at any time, by the affirmative vote of
the holders of a majority of the issued and outstanding shares entitled to vote
for the election of directors of the Corporation given at a special meeting of
the stockholders - called and held for the purpose; and the vacancy in the Board
caused by any such removal may be filled by such stockholders at such meeting,
or, if the stockholders shall fail to fill such vacancy, as in these By-Laws
provided.
Section 13. Compensation. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses; of directors for
services to the Corporation in any capacity, provided no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 14. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board of 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.
Section 15. Action by Conference Telephone. Members of the Board or
any committee may participate in a meeting of such Board or committee by means
of conference telephone or similar communications equipment by means of which
all persons participating in such meeting may hear each other, and such
participation shall constitute presence in person at such meeting.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and Other Committees. The Board may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board 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, shall have and may exercise
the powers of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may
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require it; provided, however, that no committee shall have power or authority
to amend the Certificate of Incorporation, adopt an agreement of merger or
consolidation, recommend to the stockholders a dissolution of the Corporation or
a revocation of a dissolution, or amend these By-Laws. No committee shall have
the power and authority to declare a dividend or authorize the issuance of stock
of the Corporation. Each committee shall keep written minutes of its proceedings
and shall report such minutes to the Board when required. All such proceedings
shall be subject to revision or alteration by the Board; provided, however, that
third parties shall not be prejudiced by such revision or alteration.
Section 2. General. A majority of any committee may determine its
action and fix the time and place of its meetings, unless the Board shall
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the manner provided for in Article II, Section 7. The Board shall
have any power at any time to fill vacancies in, to change the membership of, or
to dissolve any such committee. Nothing herein shall be deemed to prevent the
Board from appointing one or more committees consisting in whole or in part of
persons who are not directors of the Corporation; provided, however, that no
such committee shall have or exercise any authority of the Board.
Section 3. Audit Committee. The Board of Directors may appoint from
among its members an Audit Committee of not less than three members, and shall
designate one of such members as Chairman.
The responsibilities of the Audit Committee shall be limited to the
following:
(a) To recommend to the Board of Directors for engagement a firm of
independent certified public accountants, hereinafter called the "Firm", to
audit the accounts of the Corporation, and its subsidiaries for the year
regarding which the Firm is engaged.
(b) To meet jointly and/or separately with the Chief Financial
Officer of the Corporation and the Firm before commencement of the audit (1) to
discuss evaluation by the Firm of the adequacy and effectiveness of the
accounting procedures and internal controls of the Corporation and its
subsidiaries, (ii) to approve the overall scope of the audit to be made and the
fees to be charged, and (iii) to inquire and discuss with the Firm recent
Financial Accounting Standards Board, Securities and Exchange Commission or
other regulatory agency pronouncements, if any, which might effect the
Corporation's financial statements.
(c) The meet jointly and/or separately with the Chief Financial
Officer and the Firm at the conclusion of the audit; (i) to read and discuss the
audited financial statements of the Corporation, (ii) to discuss any significant
recommendations by the Firm for improvement of accounting systems and internal
controls of the Corporation, and (iii) to discuss the quality and depth of
staffing in the accounting and financial departments of the Corporation.
(d) To meet and confer with such officers and employees of the
Corporation as the Audit Committee shall deem appropriate in connection with
carrying out the foregoing responsibilities.
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ARTICLE IV
OFFICERS
Section 1. Number and Qualifications. The officers of the
Corporation shall include the Chairman of the Board, President, one or more Vice
Presidents (one or more of whom may be designated Executive Vice President or
Senior Vice President), the Treasurer, and the Secretary. Any two or more
offices may be held by the same person. Such officers shall be elected from time
to time by the Board, each to hold office until the meeting of the Board
following the next annual meeting of the stockholders, or until his successor
shall have been duly elected and shall have qualified, or until his death, or
until he shall have resigned, or have been removed, as hereinafter provided in
these By-Laws. The Board may from time to time elect, or the Chairman of the
Board or the President may appoint, such other officers (including one or more
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers), and
such agents, as may be necessary or desirable for the business of the
Corporation. Such other officers and agents shall have such duties and shall
hold their offices for such terms as may be prescribed by the Board or by the
appointing authority.
Section 2. Resignations. Any officer of the Corporation may resign
at any time by giving written notice of his resignation to the Board, the
Chairman of the Board, the President, or the Secretary. 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;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 3. Removal. Any officer or agent of the Corporation may be
removed, either with or without cause, at any time, by the vote of the majority
of the entire Board at any meeting of the Board or, except in the case of an
officer or agent elected or appointed by the Board, by the Chairman of the Board
or the President. Such removal shall be without prejudice of the contractual
rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising from
death, resignation, removal or any other cause, may be filled for the unexpired
portion of the term of the office which shall be vacant, in the manner
prescribed in these By-Laws for the regular election or appointment to such
office.
Section 5. Chairman of the Board. The Chairman of the Board shall be
an executive officer of the Corporation. He shall perform all duties incident to
the office of Chairman of the Board and such other duties as may from time to
time be assigned to him by the Board.
Section 6. The President. The President shall be an executive
officer of the Corporation. He shall perform all duties incident to the office
of President and such other duties as from time to time may be assigned to him
by the Board.
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Section 7. Vice Presidents. Each Executive Vice President, each
Senior Vice President and each Vice President shall have such powers and perform
all such duties as from time to time may be assigned to him by the Chairman of
the Board, the President, or the Board of Directors.
Section 8. The Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
establish and maintain internal accounting controls, and, in cooperation with
the independent public accountants selected by the Board, shall supervise
internal auditing.
The Treasurer shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursement, and shall render to the Chairman of the Board,
the President and the Board of Directors, at regular meetings of the Board or
when the Board of Directors, the Chairman of the Board or the President so
requires, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. He may delegate all or some of the above duties at
any time.
Section 9. The Assistant Treasurer. The Assistant Treasurer or, if
there shall be more than one (1), 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 in
the event of his inability or refusal to act, perform the duties and exercise
the power of the Treasurer and shall perform such other duties and have such
other powers as the Board of Directors, the Chairman of the Board or the
President may from time to time prescribe.
Section 10. The Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
the proceedings of the meetings of the Corporation and of the Board of Directors
in a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholder and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors, the Chairman of the Board or the President, under whose
supervision he shall be. The Secretary shall have custody of the corporate seal
of the Corporation and the Secretary or an Assistant Secretary shall have
authority to affix the seal to any instrument requiring it and when so affixed,
it may be attested by the signature of the Secretary or by the signature of such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature. The Secretary shall also have the powers and duties of the
Treasurer if for any reason the Corporation has no Treasurer. He may delegate
all or some of the duties at any time.
Section 11. The 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
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exercise the powers of the Secretary and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 12. Officers' Bonds or Other Security. If required by the
Board, any officer of the Corporation shall give a bond or other security for
the faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
Section 13. 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; provided, however, that the Board may delegate to the Chairman of
the Board or the President the power to fix the compensation of officers and
agents appointed by the Chairman of the Board or the President, as the case may
be. An officer of the Corporation shall not be prevented from receiving
compensation by reason of the fact that he is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to him.
ARTICLE V
INDEMNIFICATION
(a) To the extent not prohibited by law, the Corporation shall
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a Director or
officer of the Corporation, or is or was serving in any capacity at the request
of the Corporation for any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and disbursements). Persons who
are not Directors or officers of the Corporation may be similarly indemnified in
respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board at any time specifies that such persons
are entitled to the benefits of this Article V.
(b) The Corporation shall, from time to time, reimburse or advance
to any Director or officer or other person entitled to indemnification hereunder
the funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; provided, however, that if required by the
Delaware General Corporation Law, such expenses incurred by or on behalf of any
Director of officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such Director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
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(c) The rights to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article V shall not be
deemed exclusive of any other right to which a person seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
any statute, this Certificate of Incorporation, these By-laws of the
Corporation, any agreement, any vote of stockholders or disinterested Directors
or otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding such office.
(d) The rights to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article V shall continue
as to a person who has ceased to be a Director or officer (or other person
indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as otherwise required by
statute, the Certificate of Incorporation or these By-Laws, any contracts or
other instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-Laws, an officer or
agent or employee shall not have any power or authority to bind the Corporation
by any contract or engagement or to pledge its credit or to render it
pecuniarily liable for any purpose or to any amount.
Section 2. Loans. Unless the Board shall otherwise determine, either
(a) the Chairman of the Board or the President, each singly, or (b) a Vice
President, together with the Treasurer, or Secretary, may effect loans and
advances at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
certificates or evidences of indebtedness of the Corporation, but no officer or
officers shall mortgage, pledge, hypothecate or transfer any securities or other
property of the Corporation, except when authorized by the Board.
Section 3. Checks, Drafts etc. All checks, drafts, bills of exchange
or other orders for the payment of money out of the funds of the Corporation,
and all notes or other evidences of indebtedness of the Corporation, shall be
signed in the name and on behalf of the Corporation by such persons and in such
manner as shall from time to time be authorized by the Board.
Section 4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may from time
to time designate or as may be designated by any
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officer of officers of the Corporation to whom such power of designation may
from time to time be delegated by the board. For the purpose of deposit and for
the purpose of collection for the account of the Corporation, checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation, or in such other manner as the Board may determine by
resolution.
Section 5. General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board may
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these By-Laws, as it
may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board, the Chairman of
the Board, the President, or a Vice President may, from time to time, in the
name and on behalf of the Corporation (a) cast the votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other
corporation any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or consent in writing, in the name of the Corporation as such
holder, to any action by such other corporation, and execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal, or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises, and (b) appoint an attorney or attorneys or
agent or agents, of the Corporation, to take any of such actions and instruct
the person or persons so appointed as to the manner of casting such votes or
giving such consent.
ARTICLE VII
SHARES, ETC.
Section 1. Stock Certificates. Each holder of stock of the
Corporation shall be entitled to have a certificate, in such form as shall be
approved by the Board, certifying the number of shares of stock of the
Corporation owned by him. The certificates representing shares of stock shall be
signed in the name of the Corporation by the Chairman of the Board, the
President, or a Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer and sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed); provided,
however, that where any such certificate is countersigned by a transfer agent
other than the Corporation or its employee, or is registered by a registrar
other than the Corporation or one of its employees, any other signature on such
certificates may be facsimiles, engraved or printed. In case any officer,
transfer agent or registrar who shall have signed or whose facsimile signature
has been placed upon such certificates no longer holds such office, the shares
may nevertheless be issued by the Corporation with the same effect as if such
officer were still in office at the date of their issue.
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Section 2. Books of Account and Record of Stockholders. The books
and records of the Corporation may be kept at such places, within or without the
State of Delaware as the Board may from time to time determine. The stock record
books and the blank stock certificate books shall be kept by the Secretary or by
any other officer or agent designated by the Board.
Section 3. Transfer of Shares. Transfer of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the exclusive
right of a person in whose name any share or shares stand on the record of
stockholders as the owner of such share or shares for all purposes, including,
without limitation, the rights to receive dividends or other distributions, and
to vote as such owner, and the Corporation may hold any such stockholder of
record liable for calls and assessments and the Corporation shall not be bound
to recognize any equitable or legal claim to or interest in any such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof. Whenever any transfer of shares shall be made for
collateral security and not absolutely, and both the transferor and transferee
request the Corporation to do so, such fact shall be stated in the entry of the
transfer.
Section 4. Regulations. The Board 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. The Board may appoint, or authorize any officer or
officers to appoint, one or more transfer agents or one or more transfer clerks
and one or more registrars and may require all certificates for shares of stock
to bear the signature or signatures of any of them.
Section 5. Lost, Destroyed or Mutilated Certificates. The holder of
any certificate representing shares of stock of the Corporation shall
immediately notify the Corporation of any loss, destruction or mutilation of
such certificate, and the Corporation may issue a new certificate of stock in
the place of any certificate theretofore issued by it which the owner thereof
shall allege to have been lost, stolen or destroyed, or which shall have been
mutilated, and the Board may, in its discretion, require such owner or his legal
representatives to give to the Corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties as the Board in its
absolute discretion shall determine, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate, or the issuance of a new certificate.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Delaware.
Section 6. Stockholder's Right of Inspection. Any stockholder of
record of the Corporation 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 a purpose
reasonably
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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 shall be directed to the Corporation at its
registered office in the State of Delaware or at its principal place of
business.
Section 7. Fixing of 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 may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty 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 may fix a new record date for the adjourned meeting.
ARTICLE VIII
OFFICES
Section 1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be at No. 100 West Tenth Street, in
the City of Wilmington, in the County of New Castle. The name of the resident
agent in charge thereof shall be The Corporation Trust Company.
Section 2. 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 shall from time to time determine
or the business of the Corporation may require.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board.
ARTICLE X
SEAL
The Board shall provide a corporate seal, which shall be in the form
of the name of the Corporation, the year of its incorporation, and the words
"Corporate Seal, Delaware."
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ARTICLE XI
AMENDMENTS
11.1 Amendments by Board of Directors.
The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the
Corporation by the Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board).
11.2 Amendments by Stockholders.
In addition to the right of the Board of Directors, as provided in Section
11.1, above, to adopt, amend or repeal Bylaws of the Corporation, the
stockholders shall have power to adopt, amend or repeal the Bylaws of the
Corporation. In addition to any vote of the holders of any class or series of
stock of this Corporation required by law or by the Certificate of Incorporation
of the Corporation, the affirmative vote of the holders of at least 80% of the
voting power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provisions of the bylaws of the Corporation.
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