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EXHIBIT 3.19
BY-LAWS
OF
PROSOURCE MEXICO HOLDINGS, INC.
A DELAWARE CORPORATION,
AS ADAPTED ON
JANUARY 19, 1993
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS..................................................... 1
ARTICLE 2 STOCKHOLDERS.................................................... 2
2.1 Place of Meetings.......................................... 2
2.2 Annual Meeting............................................. 2
2.3 Special Meetings........................................... 3
2.4 Fixing Record Date......................................... 3
2.5 Notice of Meetings of Stockholders......................... 4
2.6 Waivers of Notice.......................................... 5
2.7 Lists of Stockholders...................................... 5
2.8 Quorum of Stockholders; Adjournment........................ 6
2.9 Voting; Proxies............................................ 6
2.10 Selection and Duties of Inspectors at Meetings of
Stockholders............................................. 7
2.11 Organization............................................... 8
2.12 Order of Business.......................................... 8
ARTICLE 3 DIRECTORS....................................................... 8
3.1 General Powers............................................. 8
3.2 Nominations for Directors.................................. 9
3.3 Number; Qualification; Term of Office...................... 9
3.4 Election................................................... 9
3.5 Newly Created Directorships and Vacancies.................. 9
3.6 Resignations............................................... 10
3.7 Removal of Directors....................................... 10
3.8 Compensation............................................... 10
3.9 Place and Time of Meetings of the Board.................... 11
3.10 Annual Meetings............................................ 11
3.11 Regular Meetings........................................... 11
3.12 Special Meetings........................................... 11
3.13 Adjourned Meetings......................................... 12
3.14 Waiver of Notice........................................... 12
3.15 Organization............................................... 13
3.16 Quorum of Directors........................................ 13
3.17 Action by the Board........................................ 13
ARTICLE 4 COMMITTEES OF THE BOARD......................................... 14
ARTICLE 5 OFFICERS........................................................ 15
5.1 Officers................................................... 16
5.2 Removal of Officers........................................ 16
5.3 Resignations............................................... 16
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5.4 Vacancies.................................................. 17
5.5 Compensation............................................... 17
5.6 President.................................................. 17
5.7 Vice Presidents............................................ 17
5.8 Secretary.................................................. 18
5.9 Treasurer.................................................. 19
5.10 Assistant Secretaries and Assistant Treasurers............. 20
ARTICLE 6 CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC................... 20
6.1 Execution of Contracts..................................... 20
6.2 Loans...................................................... 20
6.3 Checks, Drafts, Etc........................................ 21
6.4 Deposits................................................... 21
ARTICLE 7 STOCK AND DIVIDENDS............................................. 21
7.1 Certificates Representing Shares........................... 21
7.2 Transfer of Shares......................................... 22
7.3 Transfer and Registry Agents............................... 23
7.4 Lost, Destroyed, Stolen and Mutilated Certificates......... 23
7.5 Regulations................................................ 23
7.6 Restriction on Transfer of Stock........................... 24
7.7 Dividends, Surplus, Etc.................................... 24
ARTICLE 8 INDEMNIFICATION................................................. 25
8.1 Indemnification of Officers and Directors.................. 25
8.2 Indemnification of Other Persons........................... 26
8.3 Advancement of Expenses.................................... 26
8.4 Insurance.................................................. 27
8.5 Nonexclusivity of Provisions............................... 27
ARTICLE 9 BOOKS AND RECORDS............................................... 27
9.1 Books and Records.......................................... 28
9.2 Form of Records............................................ 28
9.3 Inspection of Books and Records............................ 28
ARTICLE 10 SEAL............................................................ 28
ARTICLE 11 FISCAL YEAR..................................................... 29
ARTICLE 12 VOTING OF SHARES HELD........................................... 29
ARTICLE 13 AMENDMENTS...................................................... 30
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BY-LAWS
OF
PROSOURCE MEXICO HOLDINGS, INC.
(A DELAWARE CORPORATION)
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means PROSOURCE MEXICO HOLDINGS, INC., a Delaware
corporation.
1.7 "Directors" means directors of the Corporation.
1.8 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
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1.9 "Office of the Corporation" means the executive office of the
Corporation, anything contained in Section 131 of the General Corporation Law to
the contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.3 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the
Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 PLACE OF MEETINGS. Every meeting of Stockholders shall be held at
the office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or in
the waiver of notice thereof.
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2.2 ANNUAL MEETING. A meeting of Stockholders shall be held annually
for the election of directors and the transaction of any other business that may
come before the meeting. The time and place of the meeting shall be as
determined by the Board and designated in the notice of meeting.
2.3 SPECIAL MEETINGS. A special meeting of Stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board, by the
President or by the holders of not less than 10% of the outstanding shares
entitled to vote at any meeting of the Stockholders. At any special meeting of
Stockholders only such business may be transacted as is related to the purpose
or purposes of such meeting set forth in the notice thereof given pursuant to
Section 2.5 of the By-laws or in any waiver of notice thereof given pursuant to
Section 2.6 of the By-laws.
2.4 FIXING RECORD DATE. For the purpose of determining 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 for the purpose of determining Stockholders 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 date as the record date for any such determination of
Stockholders. Such date shall not be more than sixty nor less than ten days
before
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the date of such meeting, nor more than sixty days prior to any other action. If
no such record date is fixed:
2.4.1 The record date for determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders shall be at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held;
2.4.2 The record date for determining Stockholders entitled to
express consent to corporate action in writing without a meeting, when
no prior action by the Board is necessary, shall be the day on which
the first written consent is expressed;
2.4.3 The record date for determining Stockholders for any
purpose other than those specified in Sections 2.4.1 and 2.4.2 shall be
at the close of business on the day on which the Board adopts the
resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.4, such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
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2.5 NOTICE OF MEETINGS OF STOCKHOLDERS. Except as otherwise provided
in Sections 2.4 and 2.6 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, Stockholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. A copy
of the notice of any meeting shall be given, personally or by mail, not less
than ten nor more than sixty days before the date of the meeting, to each
Stockholder entitled to notice of or to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
with postage prepaid, directed to the Stockholder at his address as it appears
on the records of the Corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the notice required
by this Section 2.5 has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken, and at the adjourned meeting any business may be transacted that might
have been transacted at the meeting as originally called. If, however, the
adjournment is for more than thirty days, or if after the adjournment a new
record date is
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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.
2.6 WAIVERS OF NOTICE. Whenever notice is required to be given to any
Stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed by
the Stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a Stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders need be
specified in any written waiver of notice.
2.7 LISTS OF STOCKHOLDERS. The Secretary shall prepare and make, or
cause to be prepared and made, 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
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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.
2.8 QUORUM OF STOCKHOLDERS; ADJOURNMENT. The holders of one-third of
the shares of stock entitled to vote at any meeting of Stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of Stockholders, it is not broken by the subsequent withdrawal of any
Stockholder or Stockholders. The holders of a majority of the shares of stock
present in person or represented by proxy at any meeting of Stockholders,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place.
2.9 VOTING; PROXIES. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each share of capital stock standing in his name on
the record of Stockholders determined in accordance with Section 2.4 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every
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reference in the Bylaws or the General Corporation Law to a majority or other
proportion of stock shall refer to such majority or other proportion of the
votes of such stock. The provisions of Sections 212 and 217 of the General
Corporation Law shall apply in determining whether any shares of capital stock
may be voted and the persons, if any, entitled to vote such shares, but the
Corporation shall be protected in treating the persons in whose names shares of
capital stock stand on the record of Stockholders as owners thereof for all
purposes. At any meeting of Stockholders (at which a quorum was present to
organize the meeting), all matters, except as otherwise provided by law or by
the Certificate of Incorporation or by the By-laws, shall be decided by a
majority of the votes cast at such meeting by the holders of shares present in
person or represented by proxy and entitled to vote thereon, whether or not a
quorum is present when the vote is taken. All elections of directors shall be by
written ballot unless otherwise provided in the Certificate of Incorporation. In
voting on any other question on which a vote by ballot is required by law or is
demanded at the commencement of the meeting by any Stockholder entitled to vote,
the voting shall be by ballot. Each ballot shall be signed by the Stockholder
voting or by his proxy, and shall state the number of shares voted. On all other
questions, the voting shall be by voice vote. Every Stockholder entitled to vote
at a meeting of Stockholders may authorize another person or persons to act for
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him by proxy. The validity and enforceability of any proxy shall be determined
in accordance with Section 212 of the General Corporation Law.
2.10 SELECTION AND DUTIES OF INSPECTORS AT MEETINGS OF STOCKHOLDERS.
The Board in accordance with Section 231 of the General Corporation Law, in
advance of any meeting of Stockholders, shall appoint one or more inspectors to
act at the meeting or any adjournment thereof. In case any person appointed
fails to appear or act, the vacancy shall be filled by appointment made by the
Board in advance of the meeting or at the meeting by the person presiding
thereat. 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
inspector or inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents,, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all Stockholders. On request of the person presiding at
the meeting or any Stockholder entitled to vote thereat, the inspector or
inspectors shall make a report in writing of any challenge,
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question or matter determined by him or them and execute a certificate of any
fact found by him or them. Any report or certificate made by the inspector or
inspectors shall be prima facie evidence of the facts stated and of the vote as
certified by him or them.
2.11 ORGANIZATION. At every meeting of Stockholders, the President, or
in the absence of the President, a Vice President, and in case more than one
vice President shall be present, that Vice President designated by the Board (or
in the absence of any such designation, the most senior Vice President, based on
age, present), shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.12 ORDER OF BUSINESS. The order of business at all meetings of
Stockholders shall be as determined exclusively by the chairman of the meeting.
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ARTICLE 3
DIRECTORS
3.1 GENERAL POWERS. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by the By-laws or the Certificate of
Incorporation or by law, to be exercised and performed by the Stockholders.
3.2 NOMINATIONS FOR DIRECTORS. Nominations for election to the Board
may be made by the Board or by any holder of shares of any outstanding class of
capital stock of the Corporation entitled to vote for the election of directors.
Nominations other than those made by the Board shall be made by notification in
writing delivered to the Secretary not less than twenty nor more than fifty days
prior to any annual or special meeting of Stockholders called for the election
of directors; provided, however that if less than twenty-eight days notice of
such meeting is given to Stockholders, such nomination shall be delivered to the
Secretary not later than the close of business on the seventh
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day following the day on which the notice of such meeting was mailed to
Stockholders.
3.3 NUMBER; QUALIFICATION; TERM OF OFFICE. The Board shall consist of
not less than one nor more than fifteen members. The total number of directors
shall be fixed initially by the incorporator and may thereafter be changed from
time to time by the Board pursuant to a resolution adopted by a majority of the
Whole Board. Directors need not be Stockholders. Each director shall hold office
until his successor is elected and qualified or until his earlier death,
resignation or removal.
3.4 ELECTION. Directors shall, except as otherwise required by law or
by the Certificate of Incorporation, be elected by a plurality of the votes cast
at a meeting of Stockholders by the holders of shares entitled to vote in the
election.
3.5 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Unless otherwise
provided in the Certificate of Incorporation, newly created directorships
resulting from an increase in the number of directors and vacancies occurring in
the Board for any other reason, including the removal of directors, shall be
filled by vote of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected to hold office for a term expiring at the annual meeting of
Stockholders at which the term of
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the class of directors to which he has been elected expires, or until his
earlier death, resignation or removal.
3.6 RESIGNATIONS. Any director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
3.7 REMOVAL OF DIRECTORS. Any or all of the directors may be removed
from office at any time, with or without cause, but only by the affirmative vote
of the holders of at least two-thirds of the voting power of all of the shares
of the Corporation entitled to vote for the election of directors.
3.8 COMPENSATION. Each director, in consideration of his service as
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any
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director from serving the Corporation or its subsidiaries in any other capacity
and receiving proper compensation therefor.
3.9 PLACE AND TIME OF MEETINGS OF THE BOARD. Meetings of the Board,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
3.10 ANNUAL MEETINGS. On the day when and at the place where the
annual meeting of Stockholders for the election of directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.12 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.11 REGULAR MEETINGS. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be hold
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the
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same place on the first business day thereafter which is not a Saturday, Sunday
or legal holiday.
3.12 SPECIAL MEETINGS. Special meetings of the Board shall be held
whenever called by the President or by any two or more directors. Notice of each
special meeting of the Board shall, if mailed, be addressed to each director at
the address designated by him for that purpose or, if none is designated, at his
last known address at least two days before the date on which the meeting is to
be held; or such notice shall be sent to each director at such address by
telegraph, cable, or wireless, or be delivered to him personally, not later than
the day before the date on which such meeting is to be held. Every such notice
shall state the time and place of the meeting but need not state the purposes of
the meeting, except to the extent required by law. If mailed, each notice shall
be deemed given when deposited, with postage thereon prepaid, in a post office
or official depository under the exclusive care and custody of the United States
post office department. Such mailing shall be by first class mail.
3.13 ADJOURNED MEETINGS. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be
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transacted at any adjourned meeting that might have been transacted at the
meeting as originally called.
3.14 WAIVER OF NOTICE. Whenever notice is required to be given to any
director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice.
3.15 ORGANIZATION. At each meeting of the Board, the President of the
Corporation, or in the absence of the President, a chairman chosen by a majority
of the directors present, shall preside. The Secretary shall act as secretary at
each meeting of the Board. In case the Secretary shall be absent from any
meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the
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person presiding at the meeting may appoint any person to act as secretary of
the meeting.
3.16 QUORUM OF DIRECTORS. One-third of the total number of directors
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
3.17 ACTION BY THE BOARD. All corporate action taken by the Board or
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that 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 or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
Section 3.17 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at
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the time of the vote, if a quorum is present at such time, shall be the act of
the Board.
ARTICLE 4
COMMITTEES OF THE BOARD
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 a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board 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, shall
have and may exercise all the powers and authority 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 require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the Stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
Stockholders a
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dissolution of the Corporation or a revocation of a dissolution, or amending the
By-laws of the Corporation; and, unless the resolution designating it expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
ARTICLE 5
OFFICERS
5.1 OFFICERS. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint one or more Vice Presidents and such other
officers as it may determine. The Board may use descriptive words or phrases to
designate the standing, seniority or area of special competence of the Vice
Presidents elected or appointed by it. Each officer shall hold his office until
his successor is elected and qualified or until his earlier death, resignation
or removal in the manner provided in Section 5.2 of the By-laws. Any two or more
offices may be held by the same person. The Board may require any officer to
give a bond or other security for the faithful performance of his duties, in
such amount and with such sureties as the Board may determine. All officers as
between themselves and the Corporation shall have such authority and perform
such duties in the management of the Corporation as may be provided in the
By-laws or as the Board may from time to time determine.
5.2 REMOVAL OF OFFICERS. Any officer elected or appointed by the Board
may be removed by the Board with or
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without cause. The removal of an officer without cause shall be without
prejudice to his contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights.
5.3 RESIGNATIONS. Any officer may resign at any time by so notifying
the Board or the President in writing. Such resignation shall take effect at the
date of receipt of such notice or at such later time as is therein specified,
and, unless otherwise specified, the acceptance of such resignation shall not be
necessary to make it effective. The resignation of an officer shall be without
prejudice to the contract rights of the corporation, if any.
5.4 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the By-laws for the regular
election or appointment to such office.
5.5 COMPENSATION. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
director.
5.6 PRESIDENT. The President shall be the chief executive officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and or any duly
authorized committee of
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directors. The President shall, if present, preside at all meetings of the
Stockholders and at all meetings of the Board. He may, with the Secretary or the
Treasurer or an Assistant Secretary or an Assistant Treasurer, sign certificates
for shares of capital stock of the Corporation. He may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts and other
instruments, except in cases where the signing and execution thereof shall be
expressly delegated by the Board or by the By-laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed or
executed; and, in general, 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.
5.7 VICE PRESIDENTS. At the request of the President, or, in his
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board or, in the absence of any such designation, in
order of seniority based on age) perform all of the duties of the President and
so acting shall have all the powers of, and be subject to all restrictions upon,
the President. Any vice President may, with the Secretary or the Treasurer or a
Assistant Secretary or an Assistant Treasurer, sign certificates for shares of
capital stock of the Corporation. Any Vice President may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in
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cases where the signing and execution thereof shall be expressly delegated by
the Board or by the By-laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed. Each Vice
President shall perform such other duties as from time to time may be assigned
to him by the Board or by the President.
5.8 SECRETARY. The Secretary, if present, shall act as Secretary of
all meetings of the Stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which an behalf of the Corporation under its
corporate seal is authorized in accordance with the provisions of the By-laws;
he shall have charge of the stock ledger and also of the other books, records
and papers of the Corporation relating to its organization and management as a
Corporation, and shall see that the reports, statements and other documents
required by law are properly kept and filed; and shall, in general, perform all
the duties incident to the office of
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Secretary and such other duties as from time to time may be assigned to him by
the Board or by the President.
5.9 TREASURER. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation, receive and
give receipts for moneys due and payable to the Corporation from any source
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositories of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the
By-laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation, have the right to require, from time to
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of
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the Corporation where such books and records are kept; and, in general, perform
all the duties incident to the Office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 EXECUTION OF CONTRACTS. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 LOANS. The President or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
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make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 CHECKS, DRAFTS, ETC. All checks, drafts and 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 on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 DEPOSITS. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositories as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to which such
power may from time to time be delegated by the Board or the President.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 CERTIFICATES REPRESENTING SHARES. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the
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Board. Such certificates shall be signed by the President or a Vice President
and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and may be sealed with the seal of the Corporation or a facsimile
thereof. The signatures of the officers upon a certificate may be facsimiles, if
the certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 TRANSFER OF SHARES. Transfers of shares of capital stock of the
Corporation shall be made only an the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the
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Corporation. A person in those name shares of capital stock shall stand on the
books of the Corporation shall be deemed the owner thereof to receive dividends,
to vote as such owner and for all other purposes as respects the Corporation. No
transfer of shares of capital stock shall be valid as against the Corporation,
its Stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer shall have been entered on the books of the Corporation by an
entry showing from and to whom transferred.
7.3 TRANSFER AND REGISTRY AGENTS. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
7.4 LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES. The holder of
any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or Mutilation and to
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advertise such fact in such manner as the Board may require, and to give the
Corporation and its transfer agents and registrars them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnity the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 REGULATIONS. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 RESTRICTION ON TRANSFER OF STOCK. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the
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General Corporation Law, shall be ineffective except against a person with
actual knowledge of the restriction. A restriction on the transfer or
registration of transfer of capital stock of the Corporation may be imposed
either by the Certificate of Incorporation or by an agreement among any number
of Stockholders or among such Stockholders and the Corporation. No restriction
so imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are parties
to an agreement or voted in favor of the restriction.
7.7 DIVIDENDS, SURPLUS, ETC. Subject to the provisions of the
Certificate of Incorporation and of law, the Board
7.7.1 May declare and pay dividends or make other distributions
on the outstanding shares of capital stock in such amounts and at such
time or times as, in its discretion, the condition of the affairs of
the Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of
the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants therefor, in accordance with
law, or any of its bonds, debentures, notes, scrip or other securities
or evidences of indebtedness;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its
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discretion, it may think proper, as a reserve fund to meet
contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the Corporation,
or for any purpose it may think conducive to the best interests of the
Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION OF OFFICERS AND DIRECTORS. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director or an officer of the Corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in effect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this
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Article 8 and the relevant provisions of the General Corporation Law and other
applicable law, if any, are in effect, and any repeal or modification thereof
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.2 INDEMNIFICATION OF OTHER PERSONS. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
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8.3 ADVANCEMENT OF EXPENSES. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation.
8.4 INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him or hold him harmless against such liability under the provisions
of Sections 8.1, 8.2 or 8.3 of the By-laws or under Section 145 of the General
Corporation Law or any other provision of law.
8.5 NONEXCLUSIVITY OF PROVISIONS. The indemnification and advancement
of expenses provided by this Article 8 shall not be deemed exclusive of any
other rights to which any person seeking indemnification or advancement of
expenses may be entitled under applicable law, the Certificate of Incorporation,
any agreement, any vote of Stockholders or disinterested directors,
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or otherwise, both as to action in his official capacity and as to action in any
other capacity while holding such office, and shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE 9
BOOKS AND RECORDS
9.1 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of the
Stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
9.2 FORM OF RECORDS. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
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9.3 INSPECTION OF BOOKS AND RECORDS. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what condition and regulations, the accounts, books, minutes and other
records of the Corporation, or any of them, shall be open to the inspection of
the Stockholders.
ARTICLE 10
SEAL
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware."
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
Unless otherwise provided by resolution of the Board, the President
may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a Stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of stock or other
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securities of such other corporation, or to consent in writing to any action by
any such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed on behalf of the Corporation and under its corporate
seal, or otherwise, such written proxies, consents, waivers or other instruments
as he may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any such
other corporation and thereat vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
ARTICLE 13
AMENDMENTS
The By-laws may be altered, amended, supplemented or repealed, or new
By-laws may be so adopted, by vote of the holders of the shares entitled to vote
in the election of directors. The By-laws may be altered, amended, supplemented
or repealed, or new By-laws may be adopted, by the action of a majority of the
Whole Board. Any By-laws adopted, altered, amended, or supplemented by the Board
may be altered, amended, or supplemented or repealed by the Stockholders
entitled to vote thereon.
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