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EXHIBIT 3.28
BYLAWS
OF
PCI CAROLINA, INC.
Dated Effective as of: September 15, 1997
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INDEX
Page
ARTICLE I OFFICES
Section 1.1 Principal office 1
Section 1.2 Registered Office 1
Section 1.3 Other Offices 1
ARTICLE II STOCKHOLDERS' MEETINGS
Section 2.1 Annual Meeting 1
Section 2.2 Special Meetings 1
Section 2.3 Notice of Meetings and Adjourned Meetings 2
Section 2.4 Voting Lists 2
Section 2.5 Quorum 3
section 2.6 Organization 3
Section 2.7 Voting 3
Section 2.8 Stockholders Entitled to Vote 4
Section 2.9 Order of Business 4
Section 2.10 Action by Written Consent 4
Section 2.11 Authorization of Proxies 5
ARTICLE III DIRECTORS
Section 3.1 Management 5
Section 3.2 Number and Term 6
Section 3.3 Quorum and Manner of Action 6
Section 3.4 Vacancies 6
Section 3.5 Resignations 7
Section 3.6 Removals 7
Section 3.7 Annual Meetings 7
Section 3.8 Regular Meetings 7
Section 3.9 Special Meetings 7
Section 3.10 Organization of Meetings 8
Section 3.11 Place of Meetings 8
Section 3.12 Compensation of Directors 8
Section 3.13 Action by Unanimous Written Consent 8
Section 3.14 Participation in Meetings by Telephone 8
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ARTICLE IV COMMITTEES OF THE BOARD
Section 4.1 Membership and Authorities 9
Section 4.2 Minutes 9
Section 4.3 Vacancies 9
Section 4.4 Telephone Meetings 10
Section 4.5 Action Without Meeting 10
ARTICLE V OFFICERS
Section 5.1 Number and Title 10
Section 5.2 Term of Office; Vacancies 10
Section 5.3 Removal of Elected Officers 11
Section 5.4 Resignations 11
Section 5.5 The Chairman of the Board 11
Section 5.6 President 11
Section 5.7 Vice Presidents 11
Section 5.8 Secretary 12
Section 5.9 Assistant Secretaries 12
Section 5.10 Treasurer 12
Section 5.11 Assistant Treasurers 13
Section 5.12 Subordinate Officers 13
Section 5.13 Salaries and Compensation 13
ARTICLE VI INDEMNIFICATION
Section 6.1 Indemnification of Directors and Officers 13
ARTICLE VII CAPITAL STOCK
Section 7.1 Certificates of Stock 17
Section 7.2 Lost Certificates 17
Section 7.3 Fixing Date for Determination of Stockholders
of Record for Certain Purposes 18
Section 7.4 Dividends 18
Section 7.5 Registered Stockholders 19
Section 7.6 Transfer of Stock 19
ARTICLE VIII MISCELLANEOUS PROVISIONS
Section 8.1 Corporate Seal 19
Section 8.2 Fiscal Year 19
Section 8.3 Checks, Drafts, Notes 19
Section 8.4 Notice and Waiver of Notice 20
Section 8.5 Examination of Books and Records 20
Section 8.6 Voting Upon Shares Held by the Corporation 20
ARTICLE IX AMENDMENTS
Section 9.1 Amendment 21
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PCI CAROLINA, INC.
BYLAWS
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the Corporation
shall be in the City of Houston, Texas.
SECTION 1.2 REGISTERED OFFICE. The registered office of the Corporation
required to be maintained in the State of Delaware by the General Corporation
Laws of the State of Delaware, may be, but need not be, identical with the
Corporation's principal office, and the address of the registered office may be
changed from time to time by the Board of Directors.
SECTION 1.3 OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware, as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the holders of shares
of each class or series of stock as are entitled to notice thereof and to vote
thereat pursuant to applicable law and the Corporation's Certificate of
Incorporation for the purpose of electing directors and transacting such other
proper business as may come before it shall be held in each year, at such time,
on such day and at such place, within or without the State of Delaware, as may
be designated by the Board of Directors.
SECTION 2.2 SPECIAL MEETINGS. In addition to such special meetings as
are provided by law or the Corporation's Certificate of incorporation, special
meetings of the holders of any class or series or of all classes or series of
the Corporation's stock for any purpose or purposes, may be called at any time
by the Board of Directors and may be held on such day, at such time
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and at such place, within or without the State of Delaware, as shall be
designated by the Board of Directors.
SECTION 2.3 NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Except as
otherwise provided by law, written notice of any meeting of Stockholders (i)
shall be given either by personal delivery or by mail to each Stockholder of
record entitled to vote thereat, (ii) shall be in such form as is approved by
the Board of Directors, and (iii) shall state the date, place and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, such written
notice shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting. Except when a Stockholder attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened, presence in person or by proxy of a Stockholder shall
constitute a waiver of notice of such meeting. Further, a written waiver of any
notice required by law or by these Bylaws, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise provided by law, the business that
may be transacted at any such meeting shall be limited to and consist of the
purpose or purposes stated in such notice. If 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; provided, however, that if the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each Stockholder
of record entitled to vote at the meeting.
SECTION 2.4 VOTING LISTS. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall keep a complete list
of Stockholders entitled to vote at meetings or any adjournments thereof,
arranged in alphabetical order, in accordance with applicable law and shall
make same available prior to and during each Stockholders' meeting for
inspection by the Corporation's Stockholders as required by law. The
Corporation's original stock transfer books shall be prima-facie evidence as to
who are the Stockholders entitled to examine such list or transfer books or to
vote at any meeting of Stockholders.
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SECTION 2.5 QUORUM. Except as otherwise provided by law or by the
Corporation's Certificate of Incorporation, the holders of a majority of the
Corporation's stock issued and outstanding and entitled to vote at a meeting,
present in person or represented by proxy, without regard to class or series,
shall constitute a quorum at all meetings of the Stockholders for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the Stockholders, the holders of a majority of
such shares of stock, present in person or represented by proxy, may adjourn
any meeting from time to time without notice other than announcement at the
meeting, except as otherwise required by these Bylaws, until a quorum shall be
present or represented. At any such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 2.6 ORGANIZATION. Meetings of the Stockholders shall be
presided over by the Chairman of the Board of Directors, if one shall be
elected, or in his absence, by the President or by any Vice President, or, in
the absence of any of such officers, by a chairman to be chosen by a majority
of the Stockholders entitled to vote at the meeting who are present in person
or by proxy. The Secretary, or, in his absence, my Assistant Secretary or any
person appointed by the individual presiding over the meeting, shall act as
secretary at meetings of the Stockholders.
SECTION 2.7 VOTING. Each Stockholder of record, as determined pursuant
to Section 2.8, who is entitled to vote in accordance with the terms of the
Corporation's Certificate of Incorporation and in accordance with the
provisions of these Bylaws, shall be entitled to one vote, in person or by
proxy, for each share of stock registered in his name on the books of the
Corporation. Every Stockholder entitled to vote at any Stockholders' meeting
may authorize another person or persons to act for him by proxy pursuant to
Section 2.11, provided that no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A
duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only so long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A Stockholder's attendance at any meeting
shall not have the effect of revoking a previously granted proxy unless such
Stockholder shall in writing so notify the Secretary of the meeting prior to
voting of the proxy. Unless otherwise provided by law, no
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vote on the election of directors or any question brought before the meeting
need be by ballot unless the chairman of shall determine that it shall be by
ballot or the holders of a majority of the shares of stock present in person or
by proxy and entitled to participate in such vote shall so demand. In a vote by
ballot, each ballot shall state the number of shares voted and the name of the
Stockholder or proxy voting, Except as otherwise provided by law, by the
Corporation's Certificate of Incorporation or these Bylaws, all elections of
directors and all other matters before the Stockholders shall be decided by the
vote of the holders of a majority of the shares of stock present in person or
by proxy at the meeting and entitled to vote in the election or on the
question. In the election of directors, votes may not be cumulated.
SECTION 2.8 STOCKHOLDERS ENTITLED TO VOTE. The Board of Directors may
fix a date not more than sixty (60) days nor less than ten (10) days prior to
the date of any meeting of Stockholders, or, in the case of corporate action by
written consent in accordance with the terms of Section 2.10, not more than
sixty (60) days prior to such action, as a record date for the determination of
the Stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, or to act by written consent, and in such case such
Stockholders and only such Stockholders as shall be Stockholders of record on
the date so fixed shall be entitled to notice of and to vote at such meeting
and any adjournment thereof, or to act by written consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
such record date is fixed as aforesaid.
SECTION 2.9 ORDER OF BUSINESS. The order of business at all meetings of
Stockholders shall be as determined by the chairman of the meeting or as is
otherwise determined by the vote of the holders of a majority of the shares of
stock present in person or by proxy and entitled to vote without regard to
class or series at the meeting.
SECTION 2.10 ACTION BY WRITTEN CONSENT. Unless otherwise provided by law
or the Corporation's Certificate of Incorporation, any action required or
permitted to be taken by the Stockholders of the Corporation may be taken
without prior notice and an actual meeting if a consent in writing setting
forth the action so taken shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Except as provided above, no action shall be
taken by the Stockholders by written
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consent. Prompt notice of the taking of any corporate action without a meeting
by less than unanimous written consent shall be given to those Stockholders who
have not consented in writing.
SECTION 2.11 AUTHORIZATION OF PROXIES. Without limiting the manner in
which a Stockholder may authorize another person or persons to act for him as
proxy, the following are valid means of granting such authority. A Stockholder
may execute a writing authorizing another person or persons to act for him as
proxy. Execution may be accomplished by the Stockholder or his authorized
officer, director, employee or agent signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature. A Stockholder may also authorize
another person or persons to act for him as proxy by transmitting or
authorizing the transmission of a telecopy, telegram, cablegram or other means
of electronic transmission to the person who will be the holder of the proxy or
to a proxy solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy to receive
such transmission, provided that any such telecopy, telegram, cablegram or
other means of electronic transmission must either set forth or be submitted
with information from which it can be determined that the telecopy, telegram,
cablegram or other electronic transmission was authorized by the Stockholder.
If it is determined that such telecopies, telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the writing or transmission
could be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission.
ARTICLE III
DIRECTORS
SECTION 3.1 MANAGEMENT. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of
Directors which may exercise all
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powers of the Corporation and do all lawful acts and things as are not by law,
by the Corporation's Certificate of Incorporation or by these Bylaws directed
or required to be exercised or done by the Stockholders.
SECTION 3.2 NUMBER AND TERM. The number of directors may be fixed from
time to time by resolution of the Board of Directors adopted by the affirmative
vote of a majority of the members of the entire Board of Directors, but shall
consist of not less than one (1) member who shall be elected annually by the
Stockholders except as provided in Section 3.4. Directors need not be
Stockholders. No decrease in the number of directors shall have the effect of
shortening the term of office of any incumbent director.
SECTION 3.3 QUORUM AND MANNER OF ACTION. At all meetings of the Board of
Directors a majority of the total number of directors holding office shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by law, by the Certificate of Incorporation or by these Bylaws. When the Board
of Directors consists of one director, the one director shall constitute a
majority and a quorum. If at any meeting of the Board of Directors there shall
be less than a quorum present, a majority of those present may adjourn the
meeting from time to time until a quorum is obtained, and no further notice
thereof need be given other than by announcement at such adjourned meeting.
Attendance by a director at a meeting shall constitute a waiver of notice of
such meeting except where a director attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
SECTION 3.4 VACANCIES. Except as otherwise provided by law and the
Certificate of Incorporation, in the case of any increase in the authorized
number of directors or of any vacancy in the Board of Directors, however
created, the additional director or directors may be elected, or, as the case
may be, the vacancy or vacancies may be filled by majority vote of the
directors remaining on the whole Board of Directors although less than a
quorum, or by a sole remaining director. In the event one or more directors
shall resign, effective at a future date, such vacancy or vacancies shall be
filled by a majority of the directors who will remain on the whole Board of
Directors, although less than a quorum, or by a sole remaining director. Any
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director elected or chosen as provided herein shall serve until the sooner of
(i) the unexpired term of the directorship to which he is appointed; or (ii)
until his successor is elected and qualified; or (iii) until his earlier
resignation or removal.
SECTION 3.5 RESIGNATIONS. A director may resign at any time upon
written notice of resignation to the Corporation, delivered to the Secretary.
Any resignation shall be effective immediately unless a certain effective date
is specified therein, in which event it will be effective upon such date and
acceptance of any resignation shall not be necessary to make it effective.
SECTION 3.6 REMOVALS. Any director or the entire Board of Directors may
be removed only for cause, and another person or persons may be elected to
serve for the remainder of his or their term, by the holders of a majority of
the shares of the Corporation entitled to vote in the election of directors,
Stockholders may not remove any director without cause. In case any vacancy so
created shall not be filled by the Stockholders at such meeting, such vacancy
may be filled by the directors as provided in Section 3.4.
SECTION 3.7 ANNUAL MEETINGS. The annual meeting of the Board of
Directors shall be held, if a quorum be present, immediately following each
annual meeting of the Stockholders at the place such meeting of Stockholders
took place, for the purpose of organization and transaction of any other
business that might be transacted at a regular meeting thereof, and no notice
of such meeting shall be necessary. If a quorum is not present, such annual
meeting may be held at any other time or place that may be specified in a
notice given in the manner provided in Section 3.9 for special meetings of the
Board of Directors or in a waiver of notice thereof.
SECTION 3.8 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such places and times as shall be
determined from time to time by resolution of the Board of Directors. Except as
otherwise provided by law, any business may be transacted at any regular
meeting of the Board of Directors.
SECTION 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President or by the Secretary on the written
request of one-third of the members of the whole Board of Directors stating the
purpose or purposes of such meeting. Notices of special meetings, if mailed,
shall be mailed to each director not later than two days before the
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day the meeting is to be held or if otherwise given in the manner permitted by
the Bylaws, not later than the day before such meeting. Neither the business to
be transacted at, nor the purpose of, any special meeting need be specified in
any notice or written waiver of notice unless so required by the Certificate of
Incorporation or by the Bylaws and, unless limited by law, the Certificate of
Incorporation or by these Bylaws, any and all business may be transacted at a
special meeting.
SECTION 3.10 ORGANIZATION OF MEETINGS. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as such Board
of Directors may from time to time determine, and all matters shall be
determined by the vote of a majority of the directors present at any meeting at
which there is a quorum, except as otherwise provided by these Bylaws or
required by law.
SECTION 3.11 PLACE OF MEETINGS. The Board of Directors may hold their
meetings and have one or more offices, and keep the books of the Corporation,
outside the State of Delaware, at any office or offices of the Corporation, or
at any other place as they may from time to time by resolution determine.
SECTION 3.12 COMPENSATION OF DIRECTORS. Directors shall not receive any
stated salary for their services as directors, but by resolution of the Board
of Directors a fixed honorarium or fees and expenses, if any, of attendance may
be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor, Members of special or standing
committees may be allowed like compensation for attending committee meetings.
SECTION 3.13 ACTION BY UNANIMOUS WRITTEN CONSENT. Unless otherwise
restricted by law, the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting if prior to such action
all members of the Board of Directors or of such 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 of Directors or the committee.
SECTION 3.14 PARTICIPATION IN MEETINGS BY TELEPHONE. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors or of any committee thereof may participate in a meeting of
such Board of Directors or committee by
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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 in such manner shall constitute presence in person
at such meeting.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.1 MEMBERSHIP AND AUTHORITIES. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board of Directors,
designate one or more Directors to constitute an Executive Committee and such
other committees as the Board of Directors may determine, each of which
committees to the extent provided in said resolution or resolutions or in these
Bylaws, shall have and may exercise all the powers of the Board of Directors
in the management of the business and affairs of the Corporation, except in
those cases where the authority of the Board of Directors is specifically
denied to the Executive Committee or such other committee or committees by law,
the Certificate of Incorporation or these Bylaws, and may authorize the seal of
the Corporation to be affixed to all papers that may require it. The
designation of an Executive Committee or other committee and the delegation
thereto of authority shall not operate to relieve the Board of Directors, or
any member thereof, of any responsibility imposed upon it or him by law.
SECTION 4.2 MINUTES. Each committee designated by the Board of Directors
shall keep regular minutes of its proceedings and shall provide a report of its
proceedings to the Board of Directors when required or requested by the Board
of Directors.
SECTION 4.3 VACANCIES. The Board of Directors may designate one or more
of its members as alternate members of any committee who may replace any absent
or disqualified member at any meeting of such committee, If no alternate
members have been appointed, the committee 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 of
Directors to act at the meeting in the place of any absent or disqualified
member. The Board of Directors shall have the power at any time to fill
vacancies in, to change the membership of, and to dissolve, any committee.
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SECTION 4.4 TELEPHONE MEETINGS. Members of any committee designated by
the Board of Directors may participate in or hold a meeting by use of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this Section 4.4 shall constitute presence in person at
such meeting, except where a person participates in the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business on the ground that the meeting is not lawfully called or convened.
SECTION 4.5 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of any committee designated by the Board of Directors may
be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the committee and filed with the minutes
of the committee proceedings. Such consent shall have the same force and effect
as a unanimous vote at a meeting.
ARTICLE V
OFFICERS
SECTION 5.1 NUMBER AND TITLE. The elected officers of the Corporation
shall be chosen by the Board of Directors and shall be a President, a Secretary
and a Treasurer. The Board of Directors may also choose a Chairman of the
Board, who must be a member of the Board of Directors, and one or more Vice
Presidents (including one or more Senior Vice Presidents), Assistant
Secretaries and/or Assistant Treasurers, One person may hold any two or more of
these offices.
SECTION 5.2 TERM OF OFFICE; VACANCIES. So far as is practicable, all
elected officers shall be elected by the Board of Directors at the annual
meeting of the Board of Directors in each year, and except as otherwise
provided in this Article V, shall hold office until the next such meeting of
the Board of Directors in the subsequent year and until their respective
successors are elected and qualified or until their earlier resignation or
removal. All appointed officers shall hold office at the pleasure of the Board
of Directors. If any vacancy shall occur in any office, the Board of Directors
may elect or appoint a successor to fill such vacancy for the remainder of the
term.
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SECTION 5.3 REMOVAL OF ELECTED OFFICERS. Any elected officer may be
removed at any time, with or without cause, by affirmative vote of a majority
of the whole Board of Directors, at any regular meeting or at any special
meeting called for such purpose.
SECTION 5.4 RESIGNATIONS. Any officer may resign at any time upon
written notice of resignation to the President, Secretary or Board of Directors
of the Corporation. Any resignation shall be effective immediately unless a
date certain is specified for it to take effect, in which event it shall be
effective upon such date, and acceptance of any resignation shall not be
necessary to make it effective, irrespective of whether the resignation is
tendered subject to such acceptance.
SECTION 5.5 THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
shall be elected, shall preside at all meetings of the Stockholders and Board
of Directors. In addition, the Chairman of the Board shall perform whatever
duties and shall exercise all powers that are given to him by the Board of
Directors.
SECTION 5.6 PRESIDENT. The President shall be the chief executive
officer of the Corporation shall (in the absence of the Chairman of the Board,
if one be elected) preside at meetings of the Stockholders and Board of
Directors, shall be ex officio a member of all standing committees; shall have
general and active management of business of the corporation; shall implement
the general directives, plans and policies formulated by the Board of
Directors; and shall further have such duties, responsibilities and authorities
as may be assigned to him by the Board of Directors. The President may sign,
with any other proper officer, certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts and other documents which the Board of
Directors has authorized to be executed, except where required by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors or these Bylaws,
to some other officer or agent of the Corporation. In the absence of the
President, his duties shall be performed and his authority may be exercised by
a Vice President of the Corporation as may have been designated by the
President with the right reserved to the Board of Directors to designate or
supersede any designation so made.
SECTION 5.7 VICE PRESIDENTS. The several Vice Presidents, which may
include one or more persons designated as Senior Vice Presidents, shall have
such powers and duties as may
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be assigned to them by these Bylaws and as may from time to time be assigned to
them by the Board of Directors or President and may sign, with any other proper
officer, certificates for shares of the Corporation.
SECTION 5.8 SECRETARY. The Secretary, if available, shall attend all
meetings of the Board of Directors and all meetings of the Stockholders and
record the proceedings of the meetings in a book to be kept for that purpose
and shall perform like duties for any committee of the Board of Directors as
the Board of Directors or such committee shall designate him to serve. The
Secretary shall give, or cause to be given, notice of all meetings of the
Stockholders and meetings of the Board of Directors and committees thereof and
shall perform such other duties incident to the office of secretary or as may
be prescribed by the Board of Directors or the President, under whose
supervision he shall be. The Secretary shall have custody of the corporate seal
of the Corporation and he, or any Assistant Secretary, or any other person whom
the Board of Directors may designate, shall have authority to affix the same to
any instrument requiring it, and when so affixed it may be attested by his
signature or by the signature of any Assistant Secretary or by the signature of
such other person so affixing such seal.
SECTION 5.9 ASSISTANT SECRETARIES. Each Assistant Secretary shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the
President or the Secretary. The Assistant Secretary or such other person as may
be designated by the President shall exercise the powers of the Secretary
during that officer's absence or inability to act.
SECTION 5.10 TREASURER. The Treasurer shall have the custody of and be
responsible for the corporate funds and securities, shall keep full and
accurate accounts of receipts and disbursements in the books belonging to the
Corporation and 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. He shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation and he shall perform all other duties incident to the position of
Treasurer, or as may be prescribed by the Board of Directors or the President.
If required by
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the Board of Directors, he shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
SECTION 5.11 ASSISTANT TREASURERS. Each Assistant Treasurer shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the
President or the Treasurer. The Assistant Treasurer or such other person
designated by the President shall exercise the power of the Treasurer during
that officer's absence or inability to act.
SECTION 5.12 SUBORDINATE OFFICERS. The Board of Directors may (a)
appoint such other subordinate officers and agents as it shall deem necessary
who shall hold the offices for such terms, have such authority and perform
such duties as the Board of Directors may from time to time determine, or (b)
delegate to any committee or officer the power to appoint any such subordinate
officers or agents.
SECTION 5.13 SALARIES AND COMPENSATION. The salary or other compensation
of officers shall be fixed from time to time by the Board of Directors. The
Board of Directors may delegate to any committee or officer the power to fix
from time to time the salary or other compensation of subordinate officers and
agents appointed in accordance with the provisions of Section 5.12.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) The
Corporation (i) shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was, at any time prior to or during which this
Article VI is in effect, a director or officer of the Corporation, or is or
was, at any time prior to or during which this Article VI is in effect, serving
at the request of the Corporation as a director or
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officer of another corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan and (11) upon a determination by the Board
of Directors that indemnification is appropriate, the Corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was, at
any time prior to or during which this Article VI is in effect, an employee or
agent of the Corporation or at the request of the Corporation was serving as an
employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan, in the case of (i) and (ii) against
reasonable expenses (including attorneys' fees), judgments, fines, penalties,
amounts paid in settlement and other liabilities actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner he reasonably believed to be
'in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceed', had no reasonable cause to believe that his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that such person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Corporation (i) shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VI is in effect, a director or
officer of the Corporation, or is or was, at any time prior to or during which
this Article VI is in effect, serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise and (ii) upon a determination by the Board of Directors
that indemnification is appropriate, the Corporation may indemnify any person
who was or is a party I or is threatened to be made a party to any threatened,
pending or completed action or suit - by or in the right of the Corporation to
procure a judgment in its favor by reason
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of the fact that such person is or was, at any time prior to or during which
this Article VI is in effect, an employee or agent of the Corporation or at the
request of the Corporation was serving as an employee or agent of another
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, in the case of (i) and (ii) against expenses (including
attorneys' fees), actually and reasonably incur-red by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; provided, that no
indemnification shall be made under this sub-section (b) in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery, or other court of appropriate jurisdiction, shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity of such expenses which the Delaware Court of Chancery, or other court
of appropriate Jurisdiction, shall deem proper.
(c) Any indemnification under sub-sections (a) or (b) (unless ordered
by the Delaware Court of Chancery or other court of appropriate jurisdiction)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the
circumstances because he has met the applicable standard of conduct set forth
in sub-sections (a) and (b). Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors not parties
to such action, suit or proceeding-, or (2) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel, in written opinion, selected by the Board of
Directors; or (3) by the Stockholders. In the event a determination is made
under this sub-section (c) that the director, officer, employee or agent has
met the applicable standard of conduct as to some matters but not as to others,
amounts to be indemnified may be reasonably prorated.
(d) Expenses incurred by a person who is or was a director or officer
of the Corporation in appearing at, participating in or defending any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the Corporation at
reasonable intervals in advance of the final disposition of such action, suit
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or proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized by this Article
VI. In addition, the Corporation shall pay or reimburse expenses incurred by
any person who is or was a director or officer of the Corporation in connection
with such person's appearance as a witness or other participant in a proceeding
in which such person or the Corporation is not a named party to such
proceeding, provided that such appearance or participation is on behalf of the
Corporation or by reason of his capacity as a director or officer, or former
director or officer of the Corporation.
(e) If, in a suit or proceeding for indemnification required under
this Article VI of a director or officer, or former director or officer, of the
Corporation or any of its affiliates, a court of competent jurisdiction
determines that such person is entitled to indemnification under this Article
VI, the court shall award, and the Corporation shall pay, to such person the
expenses incurred in securing such judicial determination.
(f) It is the intention of the Corporation to indemnify the persons
referred to in this Article VI to the fullest extent permitted by law and with
respect to any action, suit or proceeding arising from events which occur at
any time prior to or during which this Article VI is in effect. The
indemnification and advancement of expenses by this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be or become entitled under any law, the
Certificate of Incorporation, these Bylaws, agreement, the vote of Stockholders
or disinterested directors or otherwise, or under any policy or policies of
insurance purchased and maintained by the Corporation on behalf of any such
person, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
(g) The indemnification provided by this Article VI shall be subject
to all valid and applicable laws, and, in the event this Article VI or any of
the provisions hereof or the indemnification contemplated hereby are found to
be inconsistent with or contrary to any such valid laws, the latter shall be
deemed to control and this Article VI shall be regarded as modified
accordingly, and, as so modified, to continue in full force and effect.
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ARTICLE VII
CAPITAL STOCK
SECTION 7.1 CERTIFICATES OF STOCK. Certificates of stock shall be issued
to each Stockholder certifying the number of shares owned by him in the
Corporation and shall be in a form not inconsistent with the Certificate of
Incorporation and as approved by the Board of Directors. The certificates shall
be signed 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 may be sealed with the seal of the Corporation or a facsimile
thereof. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
If the Corporation shall be authorized to issue more than one (1) class
of stock or more than one (1) series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided by statute, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each Stockholder who so requests the
powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 7.2 LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the owner of such certificate, or his legal
representative. When authorizing the issuance of a new certificate, the
21
Board of Directors may in its discretion, as a condition precedent to the
issuance thereof, require the owner, or his legal representative, to give a
bond in such form and substance with such surety as it may direct, to indemnify
the Corporation against any claim that may be made on account of the alleged
loss, theft or destruction of such certificate or the issuance of such new
certificate.
SECTION 7.3 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD FOR
CERTAIN PURPOSES.
(a) In order that the Corporation may determine the 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 capital stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 days prior to the date of payment of such dividend or other
distribution or allotment of such rights or the date when any such rights in
respect of any change, conversion or exchange of stock may be exercised or the
date of such other action. In such a case, only Stockholders of record on the
date so fixed shall be entitled to receive any such dividend or other
distribution or allotment of rights or to exercise such rights or for any other
purpose, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
(b) If no record date is fixed, the record date for determining
Stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 7.4 DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, if any, and except as otherwise provided by law, the directors
may declare dividends upon the capital stock of the Corporation as and when
they deem it to be expedient, Such dividends may be paid in cash, in property
or in shares of the Corporation's capital stock. Before declaring any dividend
the directors may set apart out of the funds of the Corporation available for
dividends such sum or sums as the directors from time to time in their
discretion think proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends, or for such other purposes as the
directors shall determine to be conducive to the interests of the
22
Corporation and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 7.5 REGISTERED STOCKHOLDERS. Except as expressly provided by
law, the Certificate of Incorporation and these Bylaws, the Corporation shall
be entitled to treat registered Stockholders as the only holders and owners in
fact of the shares standing in their respective names and the Corporation shall
not be bound to recognize any equitable or other claim to or interest in such
shares on the part of any other person, regardless of whether it shall have
express or other notice thereof.
SECTION 7.6 TRANSFER OF STOCK. Transfers of shares of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
registered owners thereof, or by their legal representatives or their duty
authorized attorneys. Upon any such transfers the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge
of the stock transfer books and ledgers, by whom they shall be cancelled and
new certificates shall thereupon be issued.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 CORPORATE SEAL. If one be adopted, the corporate seal shall
have inscribed thereon the name of the Corporation and shall be in such form as
may be approved by the Board of Directors. Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or in any manner reproduced.
SECTION 8.2 FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 8.3 CHECKS, DRAFTS, NOTES. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the Corporation shall be signed by such officer or officers, agent
or agents of the Corporation, and in such manner as shall from time to time be
determined by resolution (whether general or special) of the Board of Directors
or may be prescribed by any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board of Directors.
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SECTION 8.4 NOTICE AND WAIVER OF NOTICE. Whenever notice is required to
be given to any director or Stockholder under the provisions of applicable law,
the Certificate of Incorporation or of these Bylaws it shall not be construed
to only mean personal notice, rather, such notice may also be given in writing,
by mail, addressed to such director or Stockholder at his address as it appears
on the records of the Corporation, with postage thereon prepaid (unless prior
to the mailing of such notice he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address in which case, such notice shall be mailed to the address
designated in the request), and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram, cable or other form of recorded
communication, by personal delivery or by telephone, Whenever notice is
required to be given under any provision of law, the Certificate of
Incorporation or these Bylaws, a waiver thereof in writing, by telegraph, cable
or other form of recorded communication, signed by the person or persons
entitled to said 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 on the ground that 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, directors, or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the Certificate of Incorporation or these Bylaws.
SECTION 8.5 EXAMINATION OF BOOKS AND RECORDS. The Board of Directors
shall determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Corporation (except
such as may by statute be specifically opened to inspection) or any of them
shall be open to inspection by the Stockholders, and the Stock-holders' rights
in this respect are and shall be restricted and limited accordingly.
SECTION 8.6 VOTING UPON SHARES HELD BY THE CORPORATION. Unless otherwise
provided by law or by the Board of Directors, the Chairman of the Board of
Directors, if one shall be elected, or the President, if a Chairman of the
Board of Directors shall not be elected,
24
acting on behalf of the Corporation, shall have full power and authority to
attend and to act and to vote at any meeting of Stockholders of any corporation
in which the Corporation may hold stock and, at any such meeting, shall possess
and may exercise any and all of the rights and powers incident to the ownership
of such stock which, as the owner thereof, the Corporation might have possessed
and exercised, if present. The Board of Directors by resolution from time to
time may confer like powers upon any person or persons.
ARTICLE IX
AMENDMENTS
SECTION 9.1 AMENDMENT. Except as otherwise expressly provided in the
Certificate of Incorporation, the directors, by the affirmative vote of a
majority of the entire Board of Directors and without the assent or vote of the
Stockholders, may at any meeting, provided the substance of the proposed
amendment shall have been stated in the notice of the meeting, make, repeal,
alter, amend or rescind any of these Bylaws. The Stockholders shall not make,
repeal, alter, amend or rescind any of the provisions of these Bylaws except by
the holders of not less than 80% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors,
considered for purposes of this Article IX as one class.