1
EXHIBIT 3.12
BYLAWS
OF
HOMCO PUERTO RICO, INC.
TABLE OF CONTENTS
* * * * * * *
I. OFFICES
1.1 Registered Office and Agent
1.2 Other Offices
II. STOCKHOLDERS
2.1 Place and Manner of Meetings
2.2 Annual Meeting
2.3 Voting List
2.4 Special Meetings
2.5 Notice
2.6 Quorum
2.7 Majority Vote; Withdrawal of Quorum
2.8 Method of Voting
2.9 Fixing Record Dates for Matters Other than Consents to
Action; Closing Transfer Books
2.10 Fixing Record Dates for Consents to Action
2.11 Action Without Meeting
III DIRECTORS
3.1 Management
3.2 Number; Qualification; Election; Term
3.3 Change in Number
3.4 Removal
3.5 Vacancies
3.6 Election of Directors
3.7 Place and Manner of Meetings
3.8 First Meetings
3.9 Regular Meetings
3.10 Special Meetings
3.11 Action Without Meeting
3.12 Quorum; Majority Vote
3.13 Compensation
3.14 Procedure
3.15 Interested Directors, Officers and Stockholders
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IV COMMITTEES OF THE BOARD OF DIRECTORS
4.1 Designation
4.2 Authority
4.3 Procedure
4.4 Removal
4.5 Responsibility
V OFFICERS
5.1 Number
5.2 Election
5.3 Other Officers
5.4 Term
5.5 Removal
5.6 Vacancies
5.7 Compensation
5.8 President
5.9 Vice-President
5.10 Secretary
5.11 Assistant Secretary
5.12 Treasurer
5.13 Assistant Treasurer
5.14 Filling of Offices
VI INDEMNIFICATION
6.1 Policy of Indemnification and Advancement of
Expenses
6.2 Definitions
6.3 Non-Exclusive; Continuation
6.4 Indemnification of Employees or
Agents
6.5 Insurance or Other Arrangement
VII CERTIFICATES AND STOCKHOLDERS
7.1 Certificates
7.2 Replacement of Lost or Destroyed
Certificates
7.3 Transfer of Shares
7.4 Registered Stockholders
7.5 Preemptive Rights
7.6 Restriction on Transfer of Shares
VIII NOTICE
8.1 Method
8.2 Waiver
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IX GENERAL PROVISIONS
9.1 Distributions, Share Dividends and
Reserves
9.2 Books and Records
9.3 Checks and Notes
9.4 Fiscal Year
9.5 Seal
9.6 Resignation
9.7 Amendment of Bylaws
9.8 Table of Contents; Headings
9.9 Construction
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EXHIBIT B
BYLAWS
OF
HOMCO PUERTO RICO, INC.
ARTICLE I
OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the corporation shall be as designated with the Secretary of State of
the State of Delaware and the office of the Recorder of the County of such
county, as they may be changed from time to time.
1.2 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
2.1 Place and Manner of Meetings. All meetings of the stockholders
shall be held at such time and place, within or without the State of Delaware,
as shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof. Stockholders may participate in such meetings 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 as provided herein shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
2.2 Annual Meeting. An annual meeting of the stockholders, commencing
with the year following the adoption of these Bylaws, shall be held on the
third Monday during the month of April, if not a legal holiday, and if a legal
holiday, then on the next secular day following, at 10:00 A.M., or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which time the
stockholders shall elect a board of directors, and transact such other business
as may properly be brought before the meeting.
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2.3 Voting List. At least ten days before each meeting of
stockholders a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, with the residence of each and the
number of voting shares held by each, shall be prepared by the officer or agent
having charge of the stock transfer books. Such list, for a period of ten days
prior to the meeting, shall be kept on file at a place within the city where
the meeting is to be held and shall be subject to inspection by any stockholder
for any purpose germane to the meeting, at any time during usual business
hours. Such list shall also be produced and kept open at the time and place of
the meeting during the whole time thereof, and shall be subject to the
inspection of any stockholder who may be present.
2.4 Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, or by these Bylaws, may be called by the
president, the board of directors, or the holders of not less than one-tenth of
all the shares entitled to vote at the meetings. Business transacted at all
special meetings shall be confined to the objects stated in the notice of the
meeting.
2.5 Notice. Written or printed notice stating the place, day and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which, the meeting is called, shall be delivered not less than ten nor more
than sixty days before the date of the meeting either personally or by mail, by
or at the direction of the president, the secretary or the officer or person
calling the meeting, to each stockholder of record entitled to vote at the
meeting, provided that such notice may be waived as provided in Section 8.2 of
these Bylaws. If mailed, such notice shall be deemed to be delivered when
deposited in the mail addressed to the stockholder at his address as it appears
on the stock transfer books of the corporation, with postage thereon prepaid.
Any notice required to be given to any stockholder hereunder or under the
Certificate of Incorporation need not be given to the stockholder if (A) notice
of two consecutive annual meetings of the corporation and all notices of
meetings held during the period between those annual meetings, if any, or (B)
all (but in no event less than two) payments (if sent by first class mail) of
distributions or interest on securities during a twelve-month period have been
mailed to that person, addressed at his address as shown on the share transfer
records of the corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such person shall have the same force
and effect as if the notice had been duly given.
2.6 Quorum. The holders of a majority of the shares issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy shall be requisite and shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute, by the
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Certificate of Incorporation or by these Bylaws. If a quorum is not present or
represented at a meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, until a quorum is present or represented. At
such adjourned meeting at which a quorum is present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
2.7 Majority Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of a majority of the shares having voting
power, present in person or represented by proxy, shall decide any matter
brought before such meeting, unless the matter is one upon which, by express
provision of the statutes or of the Certificate of Incorporation, or of these
Bylaws, a different vote is required, in which case such express provision
shall govern and control the decision of such matter. The stockholders present
at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum.
2.8 Method of Voting. Each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting
of stockholders, except to the extent that the voting rights of the shares of
any class or classes are limited or denied by the Certificate of Incorporation.
At any meeting of the stockholders each stockholder having the right to vote
may vote either in person or by proxy executed in writing by the stockholder or
by his duly authorized attorney-in-fact, and being dated not more than three
years prior to said meeting, unless said proxy shall provide for a longer
period. A telegram, telex, cablegram, or similar transmission by the
stockholder, or a photographic, photostatic, facsimile, or similar reproduction
of a writing executed by the stockholder, shall be treated as an execution in
writing for purposes of the immediately preceding sentence. Each proxy shall be
filed with the secretary of the corporation prior to or at the time of the
meeting. Voting for directors shall be in accordance with Section 3.6 of these
Bylaws. Any vote may be taken viva voce or by show of hands unless someone
entitled to vote objects, in which case written ballots shall be used.
2.9 Fixing Record Dates for Matters Other than Consents to Action;
Closing Transfer Books. The board of directors may fix in advance a record date
for the purpose of determining stockholders entitled to notice of or to vote at
a meeting of the stockholders, the record date to be not less than ten nor more
than sixty days prior to said meeting; or the board of directors may close the
stock transfer books for such purpose for a period of not less than ten nor
more than sixty days prior to such meeting. In the absence of any action by the
board of directors, the date upon which the notice of the meeting is mailed
shall be the record date.
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2.10 Fixing Record Dates for Consents to Action. Unless a record date
shall have previously been fixed or determined pursuant to Section 2.9 hereof,
whenever action by stockholders is proposed to be taken by consent in writing
without a meeting of stockholders, if provided for by the Certificate of
Incorporation, the board of directors may fix a record date for purposes of
determining stockholders entitled to consent to that action, which record date
shall not precede, and shall not be more than ten days after, the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of directors and the
prior action of the board of directors is not required by statute, the record
date for determining stockholders entitled to consent to action in writing
without a meeting shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office, its principal place of
business, or an officer of the corporation having custody of the books in which
proceedings of meetings of stockholders are recorded. Delivery shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the board of directors and prior action of the board of
directors is required by statute, the record date for determining stockholders
entitled to consent to action in writing without a meeting shall be at the
close of business on the date on which the board of directors adopts a
resolution taking such prior action.
2.11 Action Without Meeting. Unless otherwise provided in the
Certificate of Incorporation of the corporation, any action required by statute
to be taken at any annual or special meeting of stockholders, or any action
which may be taken at any annual or special meeting of stockholders, may be
taken without a meeting, without prior notice, and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holder or holders of shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which the holders of all shares entitled to vote on the action were present and
voted, and shall be delivered to the corporation by delivery to its registered
office in Delaware, its principal place of business, or an officer or agent of
the corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Every written consent pursuant to this Section shall
be signed, dated and delivered in the manner required by, and shall become
effective at the time and remain effective for the period specified by the
statutes. A telegram, telex, cablegram, or similar transmission by a
stockholder, or a photographic, photostatic, facsimile, or similar reproduction
of a writing signed by a stockholder, shall be regarded as signed by the
stockholder for purposes of this Section. Prompt notice of the taking of any
action by stockholders without a meeting by less than unanimous written consent
shall be given to those stockholders who did not consent in writing to the
action.
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ARTICLE III
DIRECTORS
3.1 Management. The powers of the corporation shall be exercised by
or under authority of, and the business and affairs of the corporation shall be
managed by, the board of directors who may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
3.2 Number; Qualification Election; Term. The number of directors
which shall constitute the whole board shall be not less than one (1) nor more
than seven (7). The number of directors which shall constitute the initial
board of directors shall be the number fixed by the Certificate of
Incorporation. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the board of directors.
3.2 Number; Qualification; Election; Term. The board of directors
shall consist of nine (9) directors, none of whom need to be stockholders or
residents of the State of Delaware. The directors shall be classified with
respect to the time for which they shall severally hold office by dividing them
into three classes, each consisting of three directors, and each director of
the corporation shall hold office until his successor shall be elected and
shall qualify. At the first annual meeting of stockholders, the directors of
the first class shall be elected for a term of one year; the directors of the
second class shall be elected for a term of two years, the directors of the
third class shall be elected for a term of three years; and at each annual
election thereafter the successors to the class of directors whose terms shall
expire that year shall be elected to hold office for the term of three years,
so that the term of office of one class of directors shall expire in each year.
3.3 Change in Number. The number of directors provided for in
Section 3.2 may be increased or decreased from time to time, but no decrease
shall have the effect of shortening the term of any incumbent director. Any
directorship to be filled by reason of an increase in the number of directors
shall be filled (A) by election at an annual meeting or at a special meeting of
stockholders called for that purpose, or (B) by the board of directors for a
term of office continuing only until the next election of one or more directors
by the stockholders; provided, however, that the board of directors may not
fill more than two such directorships during the period between any two
successive annual meetings of stockholders.
3.4 Removal. Any director or the entire board of directors may be
removed either for or without cause at any special or annual meeting of
stockholders, by the affirmative vote of the holders of
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a majority of the shares present in person or by proxy at such meeting and
entitled to vote for the election of such director if notice of intention to
act upon such matter shall have been given in the notice calling such meeting.
3.5 Vacancies. Any vacancy occurring in the board of directors (by an
increase in the authorized number of directors, death, resignation, retirement,
removal or otherwise) may be filled (A) by election at an annual or special
meeting of stockholders called for that purpose, or (B) by an affirmative vote
of a majority of the remaining directors, though less than a quorum of the
board of directors. A director elected to fill a vacancy shall be elected for
the unexpired term of his predecessor in office.
3.6 Election of Directors. Unless otherwise provided by the
Certificate of Incorporation, directors shall be elected by plurality of the
votes cast by the holders of shares entitled to vote in the election of
directors at a meeting of stockholders at which a quorum is present.
Cumulative voting shall not be permitted.
3.7 Place and Manner of Meetings. Meetings of the board of directors,
regular or special, may be held either within or without the State of Delaware.
Members of the board of directors may participate in such meetings 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 as provided herein shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
3.8 First Meetings. The first meeting of each newly elected board
shall be held without further notice immediately following the annual meeting
of stockholders, and at the same place, unless by unanimous consent of the
directors then elected and serving such time or place shall be changed.
3.9 Regular Meetings. Regular meetings of the board of directors may
be held without notice at such time and place as shall from time to time be
determined by the board.
3.10 Special Meetings. Special meetings of the board of directors may
be called by the president on three days' notice to each director, either
personally or by mail or by telegram. Special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors. Except as otherwise expressly provided by statute, or by the
Certificate of Incorporation, or by these Bylaws, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in a
notice or waiver of notice.
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3.11 Action Without Meeting. Any action required by statute to be
taken at a meeting of the board of directors, or any action which may be taken
at a meeting of the board of directors, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
the members of the board of directors, and the writing or writings are filed
with the minutes of the proceedings of the board of directors. Such consent
shall have the same force and effect as a unanimous vote at a meeting.
3.12 Quorum; Majority Vote. At all meetings of the board of directors
a majority of the number of directors fixed by these Bylaws shall constitute a
quorum for the transaction of business unless a greater number is required by
law or by the Certificate of Incorporation. The act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors unless the act of a greater number is required by
statute, by the Certificate of Incorporation or by these Bylaws. If a quorum
shall not be present at any meeting of the board of directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
3.13 Compensation. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of the executive
committee or of special or standing committees may, by resolution of the board
of directors, be allowed like compensation for attending committee meetings.
3.14 Procedure. The board of directors shall keep regular minutes of
its proceedings. The minutes shall be placed in the minute book of the
corporation.
3.15 Interested Directors, Officers and Stockholders.
(A) Validity. Any contract or other transaction between the
corporation and any of its directors, officers or stockholders (or any
corporation or firm in which any of them are directly or indirectly interested)
shall be valid for all purposes notwithstanding the presence of such director,
officer or stockholder at the meeting authorizing such contract or transaction
or his participation in such meeting or authorization.
(B) Disclosure, Approval. The foregoing shall, however, apply only
if:
1. The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or
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committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
2. The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
3. The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of directors, a
committee or the stockholders.
(C) Determination of Quorum. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or transaction.
(D) Non-Exclusive. This provision shall not be construed to
invalidate any contract or transaction which would be valid in the absence of
this provision.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
4.1 Designation. The board of directors may, by resolution adopted by
a majority of the whole board, designate from its members one or more
committees, each of which shall be comprised of one or more of its members, and
may designate one or more of its members as alternate members of any committee,
who may, subject to any limitations imposed by the board of directors, replace
absent or disqualified members at any meeting of that committee.
4.2 Authority. Any such committee, to the extent provided in such
resolution or the Certificate of Incorporation, shall have and may exercise all
of the authority of the board of directors in the management of the business
and affairs of the corporation, subject to the limitations set forth in the
Delaware General Corporation Law, and shall have power to authorize the seal of
the corporation to be affixed to all papers which may require it.
4.3 Procedure. Each such committee shall keep regular minutes of its
proceedings and report the same to the board of directors when required.
4.4 Removal. Any member of any such committee may be removed by the
board of directors by the affirmative vote of a majority of the whole board,
whenever in its judgment the best interests of the corporation will be served
thereby.
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4.5 Responsibility. The designation of one or more committees and the
delegation of authority to any such committee shall not operate to relieve the
board of directors, or any member thereof, of any responsibility imposed upon
it or him by law.
ARTICLE V
OFFICERS
5.1 Number. The officers of the corporation shall consist of a
president and a secretary, each of whom shall be elected by the board of
directors. Such offices may be held by the same person.
5.2 Election. The board of directors, at its first meeting after each
annual meeting of stockholders, shall elect officers for the ensuing year or
until their successors are elected, none of whom need be a member of the board,
a stockholder, or a resident of Delaware.
5.3 Other Officers. The board of directors may elect or appoint such
other officers and agents as it shall deem necessary, who shall be appointed
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the board. Any two or more offices may be
held by the same person.
5.4 Term. Each officer of the corporation shall hold office until his
successor is chosen and qualified in his stead or until his death or until his
resignation or removal from office.
5.5 Removal. Any officer or agent or member of a committee elected or
appointed by the board of directors may be removed by the board of directors
whenever in its judgment the best interests of the corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent
or member of a committee shall not of itself create contract rights.
5.6 Vacancies. Any vacancy in any office because of death,
resignation, removal or otherwise, may be filled by the board of directors for
the unexpired portion of the term.
5.7 Compensation. The compensation of all officers and agents shall
be fixed by the board of directors.
5.8 President. The president shall be the chief executive officer of
the corporation, and subject to the control of the board of directors,
shall in general supervise and control all of the business and affairs of
the corporation and shall see that all orders and resolutions of the board
are carried into effect. He
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shall, when present, preside at all meetings of the stockholders and of the
board of directors. The president may execute, with the secretary or any other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
Bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed, and in general shall perform all
duties incident to the office of president, and such other duties as may be
prescribed by the board of directors from time to time.
5.9 Vice-President. The vice-presidents in the order of their
seniority, unless otherwise determined by the board of directors shall, in the
absence or disability of the president, perform the duties and have the
authority and exercise the powers of the president. They shall perform such
other duties and have such other authority and powers as the board of directors
may from time to time prescribe or as the president may from time to time
delegate.
5.10 Secretary. The secretary shall attend all sessions of the board
of directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the executive committee when required, or any other
committee, if requested. He shall give, or cause to be given, notice of the
meetings of the board of directors and stockholders where such notices are
required by these Bylaws to be given. He shall keep in safe custody the seal of
the corporation, and when authorized by the board or the executive committee,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the treasurer or an assistant
secretary.
The secretary shall be under the supervision of the president. He
shall perform such other duties and have such other authority and powers as the
board of directors may from time to time prescribe or as the president may from
time to time delegate.
5.11 Assistant Secretary. The assistant secretaries in the order of
their seniority unless otherwise determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and have the
authority and exercise the powers of the secretary. They shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe, or as the president may from time to time delegate.
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5.12 Treasurer.
(A) The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements of 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.
(B) 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 directors, at the regular meetings of the
board, or whenever they may require it, an account of all his transactions as
treasurer and of the financial condition of the corporation.
(C) If required by the board of directors, he shall give the
corporation a bond in such form, in such sum and with such surety or sureties
as shall be satisfactory to the board 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, or other property of whatever kind in his possession or under
his control belonging to the corporation.
(D) He shall perform such other duties and have such other authority
and powers as the board of directors may from time to time prescribe, or as the
president may from time to time delegate.
5.13 Assistant Treasurer. The assistant treasurers in the order of
their seniority, unless otherwise determined by the board of directors, shall,
in the absence or disability of the treasurer, perform the duties and have the
authority and exercise the powers of the treasurer. They shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe or the president may from time to time delegate.
5.14 Filling of Offices. The board of directors of the corporation
shall not be required to fill the offices of vice-president, assistant
secretary, and assistant treasurer, or to name an executive committee or any
other committee until, in the opinion of the board, there is a need for such
offices, committees, or any of them, to be filled.
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ARTICLE VI
INDEMNIFICATION
6.1 Policy of Indemnification and Advancement of Expenses. To the
full extent permitted by Delaware law, the corporation shall indemnify any
director or officer of the corporation against judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable expenses
(including court costs and attorneys' fees) actually incurred by any such
person who was, is or is threatened to be made a named defendant or respondent
in a proceeding because the person is or was a director or officer of the
corporation and shall advance to such person such reasonable expenses as are
incurred by such person in connection therewith.
6.2 Definitions. For purposes of this Article VI:
(i) "Director" means any person who is or was a director of the
corporation and any person who, while a director of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of the
corporation or of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other
enterprise.
(ii) "Officer" means any person who is or was an officer of the
corporation and any person who, while an officer of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of the
corporation or of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise.
(iii) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
6.3 Non-Exclusive: Continuation. The indemnification provided by this
Article VI shall not be deemed exclusive of any other rights to which the
person claiming indemnification may be entitled under any agreement, any vote
of stockholders or disinterested directors of the corporation or otherwise both
as to any action in his or her official capacity and as to any action in
another capacity while holding such office, and shall continue as to a person
who shall have ceased to be a director, officer or employee of the corporation
engaged in any other enterprise at the request of the corporation and shall
inure to the benefit of the heirs, executors and administrators of such person.
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6.4 Indemnification of Employees or Agents. The corporation may
indemnify and advance expenses to an employee or agent who is not a director or
officer to such further extent, consistent with law and upon the satisfaction
of any requirements imposed by such law, as may be provided by general or
specific action of the board of directors, or contract or as permitted or
required by common law.
6.5 Insurance or Other Arrangement. The corporation shall have the
power to purchase and maintain insurance or another arrangement on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or who is or was serving at the request of the corporation as a
director, officer, employee or agent or any other capacity in another
corporation, or a partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in such
capacity, arising out of such person's status as such, whether or not such
person is indemnified against such liability by the provisions of this Article
VI.
ARTICLE VII
CERTIFICATES AND STOCKHOLDERS
7.1 Certificates. Certificates in the form determined by the board of
directors shall be delivered representing all shares to which stockholders are
entitled. Such certificates shall be consecutively numbered, and shall be
entered in the books of the corporation as they are issued. Each certificate
shall state on the face thereof the holder's name, the number and class of
shares, the par value of shares or a statement that such shares are without par
value, and such other matters as may be required by the laws of the State of
Delaware. They shall be signed by the president or a vice-president and the
secretary or assistant secretary, and may be sealed with the seal of the
corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent or registered by a registrar other than the corporation or an
employee of the corporation, the signature of such officer may be a facsimile.
In the event 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.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate representing shares to be issued in
place of any certificate theretofore issued by the corporation alleged to have
been lost or destroyed upon the making of an affidavit of that fact by the
person claiming the certificate to be lost or destroyed. When authorizing such
issue of a new
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certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as
it deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock shall be transferable only on
the books of the corporation by the holder thereof in person or by his duly
authorized attorney. Upon surrender, to the corporation or its transfer agent,
of a certificate representing shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the corporation or
its transfer agent shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
7.4 Registered Stockholders. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in
fact thereof, and accordingly shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it has express or other notice thereof, except as
otherwise provided by law.
7.5 Preemptive Rights. No stockholder or any other person shall have
any preemptive right whatsoever.
7.6 Restriction on Transfer of Shares. No stockholder (including the
heirs, assigns, executors, or administrators of a deceased stockholder) shall
voluntarily or involuntarily sell or assign shares of the corporation to any
person or persons, firms, or other corporations not a stockholder, or pledge
the same or any part thereof by endorsement resulting in delivery to a
transferee who is not a stockholder, without first offering such stock for sale
to the corporation in the following manner:
(A) Such stockholder shall give written notice by certified or
registered mail to the secretary of the corporation of his intention to sell
such shares. Said notice shall specify the number of shares to be sold, the
price per share, and the terms upon which the sale is to be made. The
corporation shall have thirty (30) days from the receipt of such notice within
which to exercise its option to purchase all or any full number of the shares
so offered. Such purchase may be authorized by the board of directors without
any action by the stockholders of the corporation. If none or only a part of
the shares offered for sale are purchased by the corporation, then the
stockholder who offered the same for sale shall thereafter have the right at
any time during the period of six (6) months after the expiration of the thirty
(30) day period referred to above, to sell said shares not so purchased to such
person or persons as he desires; PROVIDED, HOWEVER, that he shall not sell such
shares at a lower price or on
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terms more favorable to the purchaser than those specified in the written
notice he gave to the corporation, nor shall he sell such shares after the
expiration of the said six month period without again giving written notice as
hereinabove required.
(B) No shares of stock shall be sold or transferred on the books of
the corporation until these provisions have been complied with, but the board
of directors may, in any particular instance, waive the requirement.
ARTICLE VIII
NOTICE
8.1 Method. Whenever by statute or the Certificate of Incorporation
or these Bylaws, notice is required to be given to any stockholder or director,
and no provision is made as to how the notice shall be given, it shall not be
construed to mean personal notice, but any such notice may be given in writing,
postage prepaid, addressed to the director or stockholder at the address
appearing on the books of the corporation, or by any other method permitted by
law. Any notice required or permitted to be given by mail shall be deemed given
at the time when the same is thus deposited in the United States mails. Notice
to directors may also be given by telegram, with such notice being deemed to
have been given when the telegram is delivered to the telegraph company.
8.2 Waiver. Whenever, by statute or the Certificate of Incorporation
or these Bylaws, notice is required to be given to any stockholder or director,
a waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated in such notice, shall be
equivalent to the giving of such 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 grounds that the meeting is
not lawfully called or convened.
ARTICLE IX
GENERAL PROVISIONS
9.1 Distributions, Share Dividends and Reserves.
(A) Declaration and Payment. Subject to statute and the Certificate
of Incorporation, distributions and share dividends may be authorized by the
board of directors at any regular or special meeting and made by the
corporation. Distributions may be paid in cash or in property of the
corporation, and share dividends may be paid in authorized but unissued shares
or in treasury shares of the
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corporation. The authorization and payment of distributions and share dividends
shall be at the discretion of the board of directors.
(B) Record Date. The board of directors may fix in advance a record
date for the purpose of determining stockholders entitled to receive any
distribution or share dividend by the corporation, such record date to be not
more than sixty days prior to the payment of such distribution or share
dividend. In the absence of any action by the board of directors, the date upon
which the board of directors adopts the resolution authorizing the distribution
or share dividend shall be the record date.
(C) Reserves. By resolution the board of directors may create such
reserve or reserves out of the surplus of the corporation or designate or
allocate any part or all of the surplus of the corporation in any manner for
any proper purpose or purposes, and may increase, decrease or abolish any such
reserve, designation or allocation in the same manner.
9.2 Books and Records. The corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of its
stockholders, its board of directors, and each committee of its board of
directors, and shall keep at its registered office or principal place of
business, or at the office of its transfer agent or registrar, a record of the
original issuance of shares issued by the corporation and a record of each
transfer of those shares that have been presented to the corporation for
registration of transfer. Such records shall contain the names and addresses of
all past and current stockholders and the number and class of the shares issued
by the corporation held by each of them.
9.3 Checks and Notes. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time designate.
9.4 Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
9.5 Seal. The corporate seal shall have inscribed thereon the name of
the corporation and shall be in such form as the board of directors may
prescribe. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced otherwise.
9.6 Resignation. Any director, officer or agent may resign by giving
written notice to the president or the secretary. The resignation shall take
effect at the time specified therein. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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9.7 Amendment of Bylaws. These Bylaws may be repealed, altered or
amended at any meeting of the board of directors at which a quorum is present,
by the affirmative vote of a majority of the directors present at such meeting,
provided notice of the proposed repeal, alteration or amendment is contained in
the notice of such meeting, unless (A) the power to repeal, alter or amend the
Bylaws is exclusively reserved to the stockholders in whole or part by the
Certificate of Incorporation or by statute, or (B) the stockholders in
amending, repealing or adopting a particular bylaw expressly provide that the
board of directors may not amend or repeal that bylaw.
9.8 Table of Contents; Headings. The table of contents and headings
used in these Bylaws have been inserted for convenience only and do not
constitute matter to be construed in interpretation.
9.9 Construction. Whenever the context so requires, the masculine
shall include the feminine and neuter, and the singular shall include the
plural, and conversely. If any portion of these Bylaws shall be invalid or
inoperative, then, so far as is reasonable and possible:
(A) The remainder of these Bylaws shall be considered valid and
operative; and
(B) Effect shall be given to the intent manifested by the portion
held invalid or inoperative.
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