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EXHIBIT 3.4
Effective May 22, 1995
AMENDED AND RESTATED BY-LAWS
OF
HPSC, INC.
ARTICLE I
Stockholders
Section 1. Annual Meeting. An annual meeting of the
stockholders of the corporation, for the election of the Directors to succeed
those whose terms expire and for the transaction of such other business as may
properly come before the meeting, shall be held on the third Tuesday of March in
each year (or if that be a legal holiday in the place where the meeting is to be
held, on the next succeeding full business day) at the hour stated in the notice
of the meeting. If the annual meeting of the stockholders is not held on such
date, the Directors shall cause the meeting to be held as soon thereafter as
convenient.
Section 2. Special Meetings. Special meetings of the
stockholders may be called by the President or by order of the Board of
Directors, and shall be called by the Secretary (or in the case of the death,
absence, incapacity or refusal of the Secretary, by any other officer) upon
written application by one or more stockholders who together hold at least 50
percent in interest of the Capital stock entitled to vote at the meeting.
Section 3. Place and Hour of Meetings. All meetings of
stockholders shall be held at the principal office of the corporation at 10:00
a.m. local time unless a different place or hour is fixed by the person or
persons calling the meeting and stated in the notice of the meeting.
Section 4. Notices of Meetings and Adjourned Meetings. A
written notice of each annual or special meeting of the stockholders stating the
place, date, and hour thereof, shall be given by the Secretary (or the person or
persons calling the meeting), not less than 10 nor more than 60 days before the
date of the meeting, to each stockholder entitled to vote thereat, by leaving
such notice with him or at his residence or usual place of business, or by
depositing it postage prepaid in the United States mail, directed to each
stockholder at his address as it appears on the records of the corporation. The
notice of a special meeting of the stockholders shall state the purpose or
purposes for which the meeting is called. An affidavit of the Secretary,
Assistant Secretary, or transfer agent of the corporation that the notice has
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been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. No notice need be given to any person with whom communication is
unlawful or to any person who has waived such notice (a) in writing (which
writing need not specify the business to be transacted at, or the purpose of,
the meeting) signed by such person before or after the time of the meeting or
(b) by attending the meeting except for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. When a meeting is adjourned to another time
and 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
except that, if the adjournment is for more than thirty days or if, after the
adjournment, a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given in the manner provided in this Section 4.
Section 5. Quorum. At any meeting of the stockholders, a
quorum for the transaction of business shall consist of one or more individuals
appearing in person or represented by proxy and owning or representing a
majority of the shares of the corporation then outstanding and entitled to vote,
provided that less than such quorum shall have power to adjourn the meeting from
time to time.
Section 6. Voting. Unless otherwise provided in the
Certificate of Incorporation and subject to the provisions of Section 10 of this
Article I, each stockholder shall have one vote for each share of stock entitled
to vote held by him of record according to the records of the corporation.
Persons holding stock in a fiduciary capacity shall be entitled to vote the
shares so held. Persons whose stock is pledged shall be entitled to vote unless
in the transfer by the pledgor on the books of the corporation he has expressly
empowered the pledgee to vote the pledged shares, in which case only the pledgee
or his proxy shall be entitled to vote. If shares stand of record in the names
of two or more persons or if two or more persons have the same fiduciary
relationship respecting the shares then, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided to the
contrary: (a) if only one votes, his act binds all; (b) if more than one vote,
the act of the majority so voting binds all; and (c) if more than one vote and
the vote is evenly split, the effect shall be as provided by law.
Section 7. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or any group of not more
than three persons to act for him by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period.
Section 8. Action at Meeting. When a quorum is present at any
meeting, action of the stockholders on any matter properly brought before such
meeting shall require, and may be effected by, the affirmative vote of the
holders of a majority in interest of the
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stock present or represented and entitled to vote and voting on such matter,
except where a different vote is required by law, the Certificate of
Incorporation or these By-Laws. If the Certificate of Incorporation so provides,
no ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
Section 9. Stockholder Lists. The officer who has charge of
the stock ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote in person or by proxy at any
meeting of stockholders.
Section 10. Record Date.
In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date which shall
not precede the date such record date is fixed and shall not be more than 60 nor
less than ten days before the date of such meeting, nor more than 60 days prior
to any such other action. If no record is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given. The record date for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 11. Action by Written Consent. All actions taken by
stockholders shall be taken at an annual or special meeting of stockholders in
accordance with the provisions of this Article I. No action by stockholders may
be taken by written consent or otherwise without a meeting.
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Section 12. Notification of Nominations. Subject to the
provisions of Section 5 of Article II of these by-laws which permit a vacancy in
the board of directors to be filled by directors, only a stockholder of record
entitled to vote in the election of directors generally may nominate one or more
persons for election as directors at a meeting of stockholders and only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the corporation and has been received
by the Secretary in advance of the meeting of stockholders. In no event may such
notice of intention to nominate be made from the floor of the meeting of
stockholders.
Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person and persons
specified in the notice;
(c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; and
(d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors.
To be effective, each notice of intent to make a nomination given
hereunder shall be accompanied by the written consent of each nominee to serve
as a director of the corporation if elected.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not properly brought before the
meeting in accordance with the provisions hereof and, if he should so determine,
he shall declare to the meeting that such nomination was not properly brought
before the meeting and shall not be considered.
Section 13. Advance Notice of Stockholder Business.
At any special meeting of stockholders only such business shall be
conducted as shall have been set forth in the notice of special meeting. At an
annual meeting of stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (i) specified in
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the notice of meeting (or anysupplement thereto) given by or at the direction of
the Board of Directors, (ii) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (iii) otherwise (a) properly
requested to be brought before the meeting by a stockholder of record entitled
to vote in the election of directors generally and (b) constitute a proper
subject to be brought before such meeting.
For business (other than the election of directors, which is addressed
by Section 12 of this Article I) to be properly brought before an annual meeting
by a stockholder, the stockholder must give notice in writing which is either
personally delivered to or mailed and received by the Secretary of the
corporation in advance of such meeting. In no event may such notice be given
from the floor of the meeting of stockholders. A stockholder's notice to the
Secretary shall set forth as to each matter (other than the election of
directors, which is addressed by Section 12 of this Article I) the stockholder
proposes to bring before the annual meeting: (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation's books, of the stockholder intending to propose
such business, (c) the class and number of shares of capital stock of the
corporation which are beneficially owned by the stockholder, (d) a
representation that the stockholder is a holder of record of capital stock of
the corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to present such business, and (e) any material
interests of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at any annual meeting except in accordance with the
procedures set forth in Section 12 and this Section 13. The chairman of the
annual meeting shall, if the facts warrant, determine and declare to the meeting
that (i) the business proposed to be brought before the meeting was not a proper
subject therefor and/or (ii) such business was not properly brought before the
meeting in accordance with the provisions of this Section 13, and, if he should
so determine, he shall so declare to the meeting and any such business not
properly brought before the meeting or not a proper subject therefor shall not
be transacted.
ARTICLE II
Directors
Section 1. Powers. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors.
Section 2. Number of Directors. The Board of Directors shall
consist of a number within the limits set forth in Article 10 of the
corporation's Certificate of Incorporation. The number of Directors shall be
fixed by the vote of a majority of the entire Board of Directors in each case
within the limits set forth in Article 10 of the corporation's
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Certificate of Incorporation. Any increase or decrease in the authorized number
of Directors shall be governed by the provisions of Section 5 below.
Section 3. Election, Classes and Tenure. The Board of
Directors shall be and is divided into three classes: Class I, Class II and
Class III, which shall be as nearly equal in number as possible; provided,
however, that the number of Directors in any one class shall not exceed the
number of Directors in any other class by more than one. Each Director shall
serve for a term ending on the date of the third annual meeting of stockholders
following the annual meeting at which the Director was elected; provided,
however, that each initial Director in Class I shall hold office until the
annual meeting of stockholders in 1996; and each initial Director in Class II
shall hold office until the annual meeting of stockholders in 1997; and each
initial Director in Class III shall hold office until the annual meeting of
stockholders in 1998. Notwithstanding the foregoing provisions of this Section
3, each Director shall serve until his successor is duly elected and qualified
or until his death, resignation or removal. Notwithstanding the provisions of
Sections 2, 3, 5 and 6 of this Article II, whenever the holders of any one or
more classes or series of stock issued by the corporation having a preference
over the common stock as to dividends or upon liquidiation shall have the right,
voting separately by class or series, to elect Directors at an annual or special
meeting of stockhoders, the election, term of office, filling of vacancies,
terms of removal and other features of such directorships shall be governed by
the terms of Article 4 of the Corporation's Certificate of Incorporation and the
resolution or resolutions establishing such class or series adopted pursuant
thereto and such Directors so elected shall not be divided into classes pursuant
to this Article II unless expressly provided by such terms.
Section 4. Qualification. No Director must be a stockholder.
Section 5. Vacancies and Newly Created Directorships. In the
event of any increase or decrease in the authorized number of Directors, the
newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of Directors so as to maintain such classes as nearly equal in number as
possible. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director. Newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled exclusively by the
affirmative vote of a majority of the remaining Directors then in office (and
not by stockholders), even if such remaining Directors constitute less than a
quorum of the Board of Directors, or by a sole remaining Director. Any Director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor is duly elected and qualified or until his death, resignation or
removal.
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Section 6. Removal. Any Director may be removed from office
only for cause, and only upon the affirmative vote of the holders of at least
seventy-five (75%) of the voting power of the corporation's stock.
Section 7. Resignation. Any Director of the corporation may
resign at any time by giving written notice to the Board of Directors, to the
Chairman of the Board, if any, to the President, or to the Secretary, and any
member of a committee may resign therefrom at any time by giving notice as
aforesaid or to the Chairman or Secretary of such committee. Any such
resignation shall take effect at the time specified therein, or, if the time be
not specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 8. Annual Meeting. Immediately after each annual
meeting of stockholders and at the place thereof, if a quorum of the Directors
is present, there shall be a meeting of the Directors without notice.
Section 9. Regular Meetings. Regular meetings of the Directors
may be held at such times and places as shall from time to time be fixed by
resolution of the Board, and no notice need be given of regular meetings held at
times and places so fixed, PROVIDED, HOWEVER, that any resolution relating to
the holding of regular meetings shall remain in force only until the next annual
meeting of stockholders and that, if at any meeting of Directors at which a
resolution is adopted fixing the times or place or places for any regular
meetings any Director is absent, no meeting shall be held pursuant to such
resolution without notice to or waiver by such absent Director pursuant to
Section 11 of this Article II.
Section 10. Special Meetings. Special meetings of the
Directors may be called by the Chairman of the Board (if any), the President, or
by any two Directors, and shall be held at the place and on the date and hour
designated in the call thereof.
Section 11. Notices. Notices of any special meeting of the
Directors shall be given by the Secretary or an Assistant Secretary to each
Director, by mailing to him, postage prepaid, and addressed to him at his
address as registered on the books of the corporation, or if not so registered
at his last known home or business address, a written notice of such meeting at
least four days before the meeting or by delivering such notice to him at least
48 hours before the meeting or by sending to him at least 48 hours before the
meeting, by prepaid telegram addressed to him at such address, notice of such
meeting. In the absence of all such officers, such notice may be given by the
officer or one of the Directors calling the meeting. Notice need not be given to
any Director who has waived notice (a) in writing executed by him before or
after the meeting and filed with the records of the meeting, or (b) by attending
the meeting except for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or
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convened. A notice or waiver of notice of a meeting of the Directors
need not specify the business to be transacted at or the purpose of the meeting.
Section 12. Quorum. At any meeting of the Directors a majority
of the total number of Directors shall constitute a quorum for the transaction
of business; provided always that any number of Directors (whether one or more
and whether or not constituting a quorum) present at any meeting or at any
adjourned meeting may adjourn such meeting, provided that all absent Directors
receive or waive notice pursuant to Section 11 of Article II of any such
adjournment that exceeds four business days.
Section 13. Action at Meeting. At any meeting of the Directors
at which a quorum is present, the action of the Directors on any matter brought
before the meeting shall be decided by vote of a majority of those present and
voting, unless a different vote is required by law, the Certificate of
Incorporation, or these By-Laws.
Section 14. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 15. Telephone Meetings. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of such Board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 15 shall
constitute presence in person at such meeting.
Section 16. Place of Meetings. The Board of Directors may hold
its meetings, and have an office or offices, within or without the State of
Delaware.
Section 17. Compensation. The Board of Directors shall have
the authority to fix the compensation of Directors.
Section 18. Committees. (a) The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the Directors of the
corporation. The Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority
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of the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property or
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the By-Laws of the corporation. Such a
committee may, to the extent expressly provided in the resolution of the Board
of Directors, have the power or authority to declare a dividend or to authorize
the issuance of stock.
(b) At any meeting of any committee, a majority of the whole
committee shall constitute a quorum and, except as otherwise provided by
statute, by the Certificate of Incorporation, or by these By-Laws, the
affirmative vote of at least a majority of the members present at a meeting at
which there is a quorum shall be the act of the committee.
(c) Each committee, except as otherwise provided by resolution
of the Board of Directors, shall fix the time and place of its meetings within
or without the State of Delaware, shall adopt its own rules and procedures, and
shall keep a record of its acts and proceedings and report the same from time to
time to the Board of Directors.
ARTICLE III
Officers
Section 1. Officers and Their Election. The officers of the
corporation shall be a President, a Secretary, a Treasurer and such Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers as
the Board of Directors may from time to time determine and elect or appoint. The
Board of Directors may appoint one of its members to the office of Chairman of
the Board and another of its members to the office of Vice-Chairman of the Board
and from time to time define the powers and duties of these offices
notwithstanding any other provisions of these By-Laws. The President, the
Secretary and the Treasurer shall be elected by the Board of directors at its
annual meeting or at the first meeting of the Board after the date fixed by
these By-Laws therefor and may, but need not, be members of the Board of
Directors. Two or more offices may be held by the same person.
Section 2. Term of Office. The President, the Treasurer and
the Secretary shall, unless sooner removed under the provisions of these
By-Laws, hold office until the next annual election of officers and thereafter
until their respective successors are elected and qualified or until their
earlier resignation or removal. All other officers shall hold office for such
term as shall be determined from time to time by the Board of Directors.
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Section 3. Vacancies. Any vacancy at any time existing in
any office may be filled by the Directors.
Section 4. President. The President shall be the chief
executive officer of the corporation except as the Board of Directors may
otherwise provide. It shall be his duty and he shall have the power to see that
all orders and resolutions of the Board of Directors are carried into effect. He
shall from time to time report to the Board of Directors all matters within his
knowledge which the interests of the corporation may require to be brought to
its notice. The President, when present, shall preside at all meetings of the
stockholders and of the Board of Directors, unless otherwise provided by the
Board of Directors. The President shall perform such duties and have such powers
additional to the foregoing as the Board of Directors shall designate.
Section 5. Chairman of the Board. The Chairman of the Board
shall have the powers and duties expressly designated in these By-Laws and shall
perform such duties and have such powers additional thereto as the Board of
Directors shall designate.
Section 6. Vice Presidents. In the absence or disability of
the President, his powers and duties shall be performed by the Vice President,
if only one, or, if more than one, by the one designated for the purpose by the
Board of Directors. Each Vice President shall perform such duties and have such
powers additional to the foregoing as the Board of Directors shall designate.
Section 7. Treasurer. The Treasurer shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all monies and other valuable effects in the name
and to the credit of the corporation in such depositories as shall be designated
by the Board of Directors or in the absence of such designation in such
depositories as he shall from time to time deem proper. He shall disburse the
funds of the corporation as shall be ordered by the Board of Directors, taking
proper vouchers for such disbursements. He shall promptly render to the
President and to the Board of Directors such statements of his transactions and
accounts as the President and Board of Directors respectively may from time to
time require. The Treasurer shall Perform such duties and have such powers
additional to the foregoing as the Board of Directors may designate.
Section 8. Assistant Treasurers. In the absence or disability
of the Treasurer, his powers and duties shall be performed by the Assistant
Treasurer, if only one, or if more than one, by the one designated for the
purpose by the Board of Directors. Each Assistant Treasurer shall perform such
duties and have such powers additional to the foregoing as the Board of
Directors shall designate.
Section 9. Secretary. The Secretary shall issue notices of all
meetings of stockholders, of the Board of Directors and of committees thereof
where notices of such
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meetings are required by law or these By-Laws. He shall
record the proceedings of the meetings of the stockholders and of the Board of
Directors and shall be responsible for the custody thereof in a book to be kept
for that purpose. He shall also record the Proceedings of the committees of the
Board of Directors unless such committees appoint their own respective
secretaries. Unless the Board of Directors shall appoint a transfer agent and/or
registrar, the Secretary shall be charged with the duty of keeping, or causing
to be kept, accurate records of all stock outstanding, stock certificates issued
and stock transfers. He shall sign such instruments as require his signature.
The Secretary shall have custody of the corporate seal and shall affix and
attest such seal on all documents whose execution under seal is duly authorized.
In his absence at any meeting, an Assistant Secretary or the Secretary pro
tempore shall Perform his duties thereat. He shall perform such duties and have
such powers additional to the foregoing as the Board of Directors shall
designate.
Section 10. Assistant Secretaries. In the absence or
disability of the Secretary, his powers and duties shall be performed by the
Assistant Secretary, if only one, or, if more than one, by the one designated
for the purpose by the Board of Directors. Each Assistant Secretary shall
perform such duties and have such powers additional to the foregoing as the
Board of Directors shall designate.
Section 11. Salaries. The salaries and other compensation of
officers, agents and employees shall be fixed from time to time by or under
authority from the Board of Directors. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
Director of the corporation.
Section 12. Removal. The Board of Directors may remove any
officer, either with or without cause, at any time.
Section 13. Bond. The corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
Section 14. Resignations. Any officer, agent or employee of
the corporation may resign at any time by giving written notice to the Board of
Directors, to the Chairman of the Board, if any, to the President or to the
Secretary of the corporation. Any such resignation shall take effect at the time
specified therein, or, if the time be not specified, upon receipt thereof; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
ARTICLE IV
Capital Stock
Section 1. Stock Certificates. Each stockholder shall be
entitled to have a certificate signed by, or in the name of the corporation by
the Chairman or Vice-Chairman of
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the Board or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary certifying the
number of shares owned by him in the corporation. 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 the certificate is issued, such certificate may nevertheless be issued by
the corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 2. Classes of Stock. If the corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the face or back of each certificate issued by the corporation to
represent such class or series shall either (a) set forth in full or summarize
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 thereof, or (b) contain a statement
that the corporation will furnish a statement of the same without charge to each
stockholder who so requests.
Section 3. Transfer of Stock. Shares of stock shall be
transferable on the books of the corporation pursuant to applicable law and such
rules and regulations as the Board of Directors shall from time to time
prescribe. The Board of Directors may at any time or from time to time appoint a
transfer agent or agents or a registrar or registrars for the transfer or
registration of shares of stock.
Section 4. Holders of Record. Prior to due presentment for
registration of transfer the corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers of
a complete owner thereof, notwithstanding notice to the contrary.
Section 5. Lost, Stolen, or Destroyed Stock Certificates. The
Board of Directors may direct a new stock certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against the corporation on account of the alleged loss, theft, or destruction,
of such certificates or the issuance of such new certificate.
ARTICLE V
Miscellaneous Provisions
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Section 1. Interested Directors and Officers. (a) No contract
or transaction between the corporation and one or more of its Directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its Directors or
officers are Directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, 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 committee in good faith authorizes
the contract or transaction by the affirmative vote 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 shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; 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 thereof, or the shareholders.
(b) 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.
Section 2. Indemnification. To the maximum extent permitted by
the Delaware General Corporation Law, as the same may be in effect from time to
time, the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a Director or officer of the corporation,
or is or was a Director or officer of the corporation serving at the request of
the corporation as a Director or officer of another entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with such action, suit, or proceeding. Nothing herein shall be deemed
to limit the power of the corporation to similarly indemnify employees or agents
of the corporation or persons who are serving at the request of the corporation
as a Director or officer of another entity but who are not Directors or officers
of the corporation.
Section 3. Stock in Other Corporations. Subject to any
limitations that may be imposed by the Board of Directors, the President or any
person or persons authorized by the Board of Directors may, in the name and on
behalf of the corporation, (a) call meetings of the
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holders of stock or other securities of any corporation or other organization,
stock or other securities of which are held by this corporation, (b) act, or
appoint any other person or persons (with or without powers of substitution) to
act in the name and on behalf of the corporation, or (c) express consent or
dissent, as a holder of such securities, to corporate or other action by such
other corporation or organization.
Section 4. Checks, Notes, Drafts and Other Instruments.
Checks, notes, drafts and other instruments for the payment of money drawn or
endorsed in the name of the corporation may be signed by any officer or officers
or person or persons authorized by the Board of Directors to sign the same. No
officer or person shall sign any such instrument as aforesaid unless authorized
by the Board of Directors to do so.
Section 5. Corporate Seal. The seal of the corporation shall
be circular in form, bearing the name of the corporation, the word "Delaware",
and the year of incorporation, and the same may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 6. Fiscal Year. The fiscal year of the corporation
shall be the year ending with the 31st day of December.
Section 7. Books and Records. The books, accounts and records
of the corporation, except as may be otherwise required by the laws of the State
of Delaware, may be kept outside of the State of Delaware, at such place or
places as the Board of Directors may from time to time appoint. Except as may
otherwise be provided by law, the Board of Directors shall determine whether and
to what extent the books, accounts, records and documents of the corporation, or
any of them, shall be open to the inspection of the stockholders.
Section 8. Separability. If any term or provision of the
By-Laws, or the application thereof to any person or circumstances or period of
time, shall to any extent be invalid or unenforceable, the remainder of the
By-Laws shall be valid and enforced to the fullest extent permitted by law.
Section 9. Amendments. The By-Laws may be amended or repealed
by the stockholders or, if such power is conferred by the Certificate of
Incorporation, by the Board of Directors, except that any By-law added or
amended by the stockholders may be altered or repealed only by the stockholders
if such By-law expressly so provides.