BY-LAWS
OF
FALK ASSOCIATES MANAGEMENT ENTERPRISES, INC.
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the
corporation shall be maintained in the city of Wilmington of New Castle County,
State of Delaware, and the registered agent in charge thereof is Corporation
Trust Center.
Section 2. OTHER OFFICES. The corporation may also have an
office in such other places as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
Section 1. PLACE OF MEETINGS. All meetings of the
stockholders, whether annual or special, shall be held at the offices of the
corporation in Arlington, Virginia, or at such other place as may be fixed from
time to time by the Board of Directors.
Section 2. ANNUAL MEETINGS. An annual meeting of the
stockholders, commencing with the year 1993, shall be held on the second
Wednesday in February in each year, but if a legal holiday then on the next
secular day following, at which they shall elect a Board of Directors, and
transact such other business as may properly be brought before the meeting.
Section 3. NOTICE OF ANNUAL MEETINGS. Written notice of the
annual meeting stating the place, date and hour of the meeting, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote at such meeting. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
Section 4. STOCKHOLDERS' LIST. At least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
said meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered
in the name of each stockholder, shall be prepared by the Secretary. 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 at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 5. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, nay be called by the Chairman of
the Board or by the President and shall be called by the Secretary at the
request of a majority of the Board of Directors, or at the request in writing of
stockholders owning at least two-thirds of the number of shares of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. NOTICE OF SPECIAL MEETINGS. Written notice of a
special meeting, stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than ten
nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the corporation.
Section 7. 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 Certificate of incorporation or by these By-Laws.
If, however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have the power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, of the place,
date and hour of the adjourned meeting, until a quorum shall again be present or
represented by proxy. At the adjourned meeting at which a quorum shall be
present or represented by proxy, the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for theadjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 8. VOTING. When a quorum is present at any meeting,
and subject to the provisions of the General Corporation Law of the State of
Delaware, the Certificate of Incorporation or these By-Laws in respect of the
vote that shall be required for a specified action, the vote of the holders of a
majority of the shares having voting power, present in person or represented by
proxy, shall decide any question brought before such meeting, unless the
question is one upon which, by express provision of the statutes or of the
Certificate of Incorporation or of these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question. Each stockholder shall have one vote for each share of stock
having voting power
-2-
registered in his name on the books of the corporation, except as otherwise
provided in the Certificate of Incorporation.
Section 9. 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 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 10. CONSENT. Unless otherwise provided in the
Certificate of incorporation, any action required by the General Corporation Law
of the State of Delaware to be taken at any meeting of stockholders, or any
action which may be taken at any meeting of such 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
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 and shall be
delivered to the corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or the Secretary. Delivery made to
a corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this section to the
corporation, written consents signed by a sufficient number of holders to take
action are delivered to the corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or the Secretary.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise provided in the General Corporation Law of
the State of Delaware or the Certificate of Incorporation. Directors need not be
stockholders unless required in the Certificate of Incorporation.
Section 2. NUMBER OF DIRECTORS. The number of directors which
shall constitute the whole Board shall be one (I). The directors shall be
elected at the annual meeting of the stockholders, and each director shall hold
office until his successor is elected and qualified or until his earlier
resignation or removal.
-3-
Section 3. RESIGNATION. A director may resign at any time upon
written notice to the corporation.
Section 4. VACANCIES. If the office of any director or
directors becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, or a new directorship is
created, the holders of a majority of shares issued and outstanding and entitled
to vote in elections of directors, shall choose a successor or successors, or a
director to fill the newly created directorship, who shall hold office for the
unexpired term or until the next election of directors.
Section 5. PLACE OF MEETINGS. The Board of Directors may hold
its meetings outside of the State of Delaware, at the office of the corporation
or at such other places as they nay from time to time determine, or as shall be
fixed in the respective notices or waivers of notice of such meetings.
Section 6. COMMITTEES OF DIRECTORS. The Board of Directors
may, by resolution or resolutions 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 of
the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation, if any, 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
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board
of Directors, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation or fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amendment to
the By-Laws, of the corporation; and, unless the resolution, By-Laws, or
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. The committees shall keep
regular minutes of their proceedings and report the same to the Board of
Directors when required.
-4-
Section 7. COMPENSATION OF DIRECTORS. Directors, as such, may
receive such stated salary for their services and/or such fixed sums and
expenses of attendance for attendance at each regular or special meeting of the
Board of Directors as may be established by resolution of the Board; provided
that 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 nay be allowed like
compensation for attending committee meetings.
Section 8. ANNUAL MEETINGS. The annual meeting of the Board of
Directors shall be held within ten days after the annual meeting of the
stockholders in each year. Notice of such meeting, unless waived, shall be given
by mail or telegram to each director elected at such annual meeting, at his
address as the same may appear on the records of the corporation, or in the
absence of such address, at his residence or usual place of business, at least
three days before the day on which such meeting is to be held. Said meeting may
be held at such place as the Board may fix from time to time or as may be
specified or fixed in such notice or waiver thereof.
Section 9. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time on the call of the Chairman of the Board, the
President, or at the request in writing of any one (1) director. Notice of any
such meeting, unless waived, shall be given by mail or telegram to each director
at his address as the same appears on the records of the corporation not less
than one day prior to the day on which such meeting is to be held if such notice
is by telegram, and not less than two days prior to the day on which the meeting
is to be held if such notice is by mail. If the Secretary shall fail or refuse
to give such notice, then the notice may be given by the officer or any one of
the directors making the call. Any such meeting may be held at such place as the
Board may fix from time to time or as may be specified or fixed in such notice
or waiver thereof. Any meeting of the Board of Directors shall be a legal
meeting without any notice thereof having been given, if all the directors shall
be present thereat, and no notice of a meeting shall be required to be given to
any director who shall attend such meeting.
Section 10. ACTION WITHOUT MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors or
any committee thereof may be taken without a meeting, if a written consent to
such action is signed by all members of the Board or of such committee, as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors.
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, members of the Board of Directors, or any
committee designated by the Board, may participate in a meeting of the 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 shall constitute
presence in person at such meeting.
Section 11. QUORUM AND MANNER OF ACTING. Except as otherwise
provided in the Certificate of Incorporation or these By-Laws, a majority of the
total number of directors as
-5-
at the time specified by the By-Laws shall constitute a quorum at any regular or
special meeting of the Board of Directors. Except as otherwise provided by
statute, by the Certificate of Incorporation or by these By-Laws, the vote 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. In the absence of a quorum, a
majority of the directors present may adjourn the meeting from time to time
until a quorum shall be present. Notice of any adjourned meeting need not be
given, except that notice shall be given to all directors if the adjournment is
for more than thirty days.
ARTICLE IV
OFFICERS
Section 1. EXECUTIVE OFFICERS. The executive officers of the
corporation shall be a Chairman of the Board, a President, such number of Vice
Presidents, if any, as the Board of Directors may determine and a Secretary, and
a Treasurer, if any. one person may hold any number of said offices.
Section 2. ELECTION, TERM OF OFFICE AND ELIGIBILITY. The
executive officers of the corporation shall be elected annually by the Board of
Directors at its annual meeting; provided that new or additional officers may be
elected at any meeting of the Board. Each officer, except such officers as may
be appointed in accordance with the provisions of Section 3, shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal. The Chairman of the Board shall be and remain a member of the Board of
Directors. None of the other officers need be members of the Board.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may
appoint such Assistant secretaries, Assistant Treasurers, Controller and other
officers, and such agents as the Board may determine, to hold office for such
period and with such authority and to perform such duties as the Board may from
time to time determine. The Board may, by specific resolution, empower the chief
executive officer of the corporation or the Executive Committee to appoint any
such subordinate officers or agents.
Section 4. RESIGNATION AND REMOVAL. Any officer may resign at
any time upon written notice to the corporation. The Chairman of the Board, the
President, any Vice President, the Secretary and/or the Treasurer may be removed
at any time, either with or without cause, but only by the affirmative vote of
the majority of the total number of directors as at the time specified by the
By-Laws. Any subordinate officer appointed pursuant to Section 3 may be removed
at any time, either with or without cause, by the majority vote of the directors
present at any meeting of the Board or by any committee or officer empowered to
appoint such subordinate officers.
Section 5. THE CHAIRMAN OF THE BOARD. The Chairman of the
Board shall preside at all regular and special meetings of stockholders and
directors, shall advise and counsel
-6-
with the President and shall assume such other duties as from time to time may
be assigned to him by the Board of Directors.
Section 6. THE PRESIDENT. The President shall be the chief
executive officer of the corporation. He shall have executive authority to see
that all orders and resolutions of the Board of Directors are carried into
effect, and, subject to the control vested in the Board of Directors by statute,
by the Certificate of Incorporation or by these By-Laws, shall administer and be
responsible for the management of the business and affairs of the corporation.
In the absence of the Chairman of the Board, he shall preside at all meetings of
the stockholders and the Board of Directors. In general he shall perform all
duties incident to the office of the President and such other duties as from
time to time may be assigned to him by the Board of Directors.
Section 7. THE VICE PRESIDENTS. In the event of the absence or
disability of the President, each Vice President, in the order designated, or in
the absence of any designation, then in the order of their election, shall
perform the duties of the President. The Vice Presidents shall also perform such
other duties as from time to time may be assigned to them by the Board of
Directors or by the chief executive officer of the corporation.
Section 8. THE SECRETARY. The Secretary shall:
(a) keep the minutes of the meetings of the stockholders and
of the Board of Directors;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law;
(c) be custodian of the records and of the seal of the
corporation, if any, and, if a seal is adopted, see that the seal or a facsimile
or equivalent thereof is affixed to or reproduced on all documents, the
execution of which on behalf of the corporation under its seal is duly
authorized;
(d) have charge of the stock record books of the corporation;
and
(e) in general, perform all duties incident to the office of
secretary, and such other duties as are provided by these By-Laws and as from
time to time are assigned to him by the Board of Directors or by the chief
executive officer of the corporation.
Section 9. THE ASSISTANT SECRETARIES. If one or more Assistant
Secretaries shall be appointed pursuant to the provisions of Section 3
respecting subordinate officers, then, at the request of the Secretary, or in
his absence or disability, the Assistant Secretary designated by the Secretary
(or in the absence of such designations, then any one of such Assistant
Secretaries) shall perform the duties of the Secretary and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
Secretary.
-7-
Section 10. THE TREASURER. The Treasurer, if any, shall:
(a) receive and be responsible for all funds of and securities
owned or held by the corporation and, in connection therewith, among other
things: keep or cause to be kept full and accurate records and accounts for the
corporation; deposit or cause to be deposited to the credit of the corporation
all monies, funds and securities so received in such bank or other depositary as
the Board of Directors or an officer designated by the Board may from time to
time establish; and disburse or supervise the disbursement of the funds of the
corporation as may be properly authorized;
(b) render to the Board of Directors at any meeting thereof,
or from time to time whenever the Board of Directors or the chief executive
officer of the corporation may require, financial and other appropriate reports
on the condition of the corporation; and
(c) in general, perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned to him
by the Board of Directors or by the chief executive officer of the corporation.
If no Treasurer shall be elected, the duties of the Treasurer shall be performed
by the Secretary.
Section 11. THE ASSISTANT TREASURERS. If one or more Assistant
Treasurers shall be appointed pursuant to the provisions of section 3 respecting
subordinate officers, then, at the request of the Treasurer, or in his absence
or disability, the Assistant Treasurer designated by the Treasurer (or in the
absence of such designation, then any one of such Assistant Treasurers) shall
perform all the duties of the Treasurer and when so acting shall have all the
powers of and be subject to all the restrictions upon, the Treasurer.
Section 12. SALARIES. The salaries of the officers shall be
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the corporation.
Section 13. BONDS. If the Board of Directors or the chief
executive officer shall so require, any officer or agent of the corporation
shall give bond to the corporation in such amount and with such surety as the
Board of Directors or the chief executive officer, as the case may be, may deem
sufficient, conditioned upon the faithful performance of their respective duties
and offices.
Section 14. DELEGATION OF DUTIES. In case of the absence of
any officer of the corporation or for any other reason which may seem sufficient
to the Board of Directors, the Board of Directors may, for the time being,
delegate his powers and duties, or any of them, to any other officer or to any
director.
-8-
ARTICLE V
SHARES OF STOCK
Section 1. REGULATION. Subject to the terms of any contract of
the corporation, the Board of Directors may make such rules and regulations as
it may deem expedient concerning the issue, transfer, and registration of
certificates for shares of the stock of the corporation, including the issue of
new certificates for lost, stolen or destroyed certificates, and including
appointment of transfer agents and registrars.
Section 2. STOCK CERTIFICATES. Certificates for shares of the
stock of the corporation shall be respectively numbered serially for each class
of stock, or series thereof, as they are issued, shall, if a seal is adopted, be
impressed with the corporate seal or a facsimile thereof, and shall be signed by
the Chairman of the Board, or the President or a Vice President, and by the
Secretary or Treasurer, or an Assistant Secretary or an Assistant Treasurer,
provided that such signatures may be facsimiles on any certificate countersigned
by a transfer agent other than the corporation or its employee. Each certificate
shall exhibit the name of the corporation, the class (or series of any class)
and number of shares represented thereby, and the name of the holder. Each
certificate shall be otherwise in such form as may be prescribed by the Board of
Directors.
Section 3. RESTRICTION ON TRANSFER OF SECURITIES. A
restriction on the transfer or registration of transfer of securities of the
corporation may be imposed either by the Certificate of Incorporation or by
these By-Laws or by an agreement among any number of security holders or among
such holders and the corporation. No restriction so imposed shall be binding
with respect to securities issued prior to the adoption of the restriction
unless the holders of the securities are parties to an agreement or voted in
favor of the restriction. A restriction on the transfer of securities of the
corporation is permitted by this section if it:
(a) obligates the holder of the restricted securities to offer
to the corporation or to any other holders of securities of the corporation or
to any other person or to any combination of the foregoing, a prior opportunity,
to be exercised within a reasonable time, to acquire the restricted securities;
or
(b) obligates the corporation or any holder of securities of
the corporation or any other person or any combination of the foregoing, to
purchase the securities which are the subject of an agreement respecting the
purchase and sale of the restricted securities; or
(c) requires the corporation or the holders of any class of
securities of the corporation to consent to any proposed transfer of the
restricted securities or to approve the proposed transferee of the restricted
securities; or
(d) prohibits the transfer of the restricted securities to
designated persons or classes of persons; and such designation is not manifestly
unreasonable; or
-9-
(e) restricts transfer or registration of transfer in any
other lawful manner.
Unless noted conspicuously on the security, a restriction,
even though permitted by this section, is ineffective except against a person
with actual knowledge of the restriction.
Section 4. TRANSFER OF SHARES. Subject to the restrictions
permitted by Section 3, shares of the capital stock of the corporation shall be
transferable on the books of the corporation by the holder thereof in person or
by his duly authorized attorney, upon the surrender or cancellation of a
certificate or certificates for a like number of shares. As against the
corporation, a transfer of shares can be made only on the books of the
corporation and in the manner hereinabove provided, and the corporation shall be
entitled to treat the registered holder of any share as the owner thereof and
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the statutes of the State
of Delaware.
Section 5. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD.
(a) 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, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record date 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,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. 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.
(b) In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date 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 is fixed, the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is setting forth
the action taken or proposed to be taken is delivered to the corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or the Secretary. Delivery made to the corporation's registered
office 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 by the Board of Directors is required by the General Corporation Law of
the State of Delaware, the record date for determining stockholders entitled to
-10-
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
(c) 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 the stockholders 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
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty days prior to such action. 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 6. LOST CERTIFICATES. Any stockholder claiming that a
certificate representing shares of stock has been lost, stolen or destroyed may
make an affidavit or affirmation of the fact and, if the Board of Directors so
requires, advertise the same in a manner designated by the Board, and give the
corporation a bond of indemnity in form and with security for an amount
satisfactory to the Board (or an officer or officers designated by the Board),
whereupon a new certificate may be issued of the same tenor and representing the
same number, class and/or series of shares as were represented by the
certificate alleged to have been lost, stolen or destroyed.
ARTICLE VI
BOOKS AND RECORDS
Section 1. LOCATION. The books, accounts and records of the
corporation may be kept at such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine.
Section 2. INSPECTION. The books, accounts, and records of the
corporation shall be open to inspection by any member of the Board of Directors
at all times; and open to inspection by the stockholders at such times, and
subject to such regulations as the Board of Directors may prescribe, except as
otherwise provided by statute.
Section 3. CORPORATE SEAL. The corporation may provide a
corporate seal which shall contain two concentric circles between which shall be
the name of the corporation and the word "Delaware" and in the center shall be
inscribed the words "Corporate Seal" and which may be used, but is not required
to be used, by officers of the corporation.
ARTICLE VII
DIVIDENDS AND RESERVES
-11-
Section 1. DIVIDENDS. The Board of Directors of the
corporation, subject to any restrictions contained in the Certificate of
Incorporation and other lawful commitments of the corporation, may declare and
pay dividends upon the shares of its capital stock either out of the surplus of
the corporation, as defined in and computed in accordance with the General
Corporation Law of the State of Delaware, or in case there shall be no such
surplus, out of the net profits of the corporation for the fiscal year in which
the dividend is declared and/or the preceding fiscal year. If the capital of the
corporation, computed in accordance with the General Corporation Law of the
State of Delaware, shall have been diminished by depreciation in the value of
its property, or by losses, or otherwise, to an amount less than the aggregate
amount of the capital represented by the issued and outstanding stock of all
classes having a preference upon the distribution of assets, the Board of
Directors of the corporation shall not declare and pay out of such net profits
any dividends upon any shares of any classes of its capital stock until the
deficiency in the amount of capital represented by the issued and outstanding
stock of all classes having a preference upon the distribution of assets shall
have been repaired.
Section 2. RESERVES. The Board of Directors of the corporation
may set apart, out of any of the funds of the corporation available for
dividends, a reserve or reserves for any proper purpose and may abolish any such
reserve.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. FISCAL YEAR. The fiscal year of the corporation
shall end on the 31st day of December of each year.
Section 2. DEPOSITORIES. The Board of Directors or an officer
designated by the Board shall appoint banks, trust companies, or other
depositories in which shall be deposited from time to time the money or
securities of the corporation.
Section 3. CHECKS, DRAFTS AND NOTES. All checks, drafts, or
other orders for the payment of money and all notes or other evidences of
indebtedness issued in the name of the corporation shall be signed by such
officer or officers or agent or agents as shall from time to time be designated
by resolution of the Board of Directors or by an officer appointed by the Board.
Section 4. CONTRACTS AND OTHER INSTRUMENTS. The Board of
Directors may authorize any officer, agent or agents to enter into any contract
or execute and deliver any instrument in the name and on behalf of the
corporation and such authority may be general or confined to specific instances.
Section 5. NOTICES. Unless otherwise provided in these
By-Laws, whenever under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws notice is required to be given to any director
or stockholder, it shall not be construed to mean personal notice,
-12-
but such notice may be given in writing, by mail, by depositing the same in a
post office or letter box, in a postpaid sealed wrapper, or by delivery to a
telegraph company, addressed to such director or stockholder at such address as
appears on the records of the corporation, or, in default of other address, to
such director or stockholder at the General Post Office in the City of Dover,
Delaware, and such notice shall be deemed to be given at the time when the same
shall be thus mailed or delivered to a telegraph company.
Section 6. WAIVERS OF NOTICE. Whenever any notice is required
to be given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing 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 because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, 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 By-Laws.
Section 7. STOCK IN OTHER CORPORATIONS. Any shares of stock in
any other corporation which may from time to time be held by this corporation
may be represented and voted at any meeting of shareholders of such corporation
by the Chairman of the Board, or the President or a Vice President, or by any
other person or persons thereunto authorized by the Board of Directors, or by
any proxy designated by written instrument of appointment executed in the name
of this corporation by its Chairman of the Board, President or a Vice President.
Shares of stock belonging to the corporation need not stand in the name of the
corporation, but may be held for the benefit of the corporation in the
individual name of the Treasurer or of any other nominee designated for the
purpose by the Board of Directors. Certificates for shares so held for the
benefit of the corporation shall be endorsed in blank or have proper stock
powers attached so that said certificates are at all times in due form for
transfer, and shall be held for safekeeping in such manner as shall be
determined from time to time by the Board of Directors.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1. AUTHORIZATION FOR INDEMNIFICATION.
(a) 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 (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
-13-
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he 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 proceeding, had no reasonable cause to believe 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 the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interest 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 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 reasons of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the corporation and except that no indemnification shall be
made 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 Court of Chancery or the court in which such action or suit was brought
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 for such expenses with the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 2. AUTHORIZATION BY DIRECTORS, LEGAL COUNSEL OR
STOCKHOLDERS. Any indemnification under subsections (a) and (b) of Section 1 of
this article (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in subsections (a) and
(b) of Section 1 of this article. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors who
were 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 a written opinion, or (3) by the
stockholders.
Section 3. REPAYMENT. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding
-14-
may be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such 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 in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
Section 4. NOT EXCLUSIVE OF OTHER RIGHTS. The indemnification
and advancement of expenses provided by, or granted pursuant to, the other
sections of this article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
Section 5. INSURANCE. The corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of this article.
Section 6. DEFINITIONS.
(a) For purposes of this article, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this article with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had, continued.
(b) For purposes of this article, references to
"other-enterprise" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an
-15-
employee benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in this article.
Section 7. CONTINUATION OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this article shall, unless otherwise provided when authorized or ratified,
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 administration
of such a person.
ARTICLE X
AMENDMENTS
These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted by the stockholders, or by the Board of Directors when
such power is conferred upon the Board of Directors by the certificate of
incorporation, at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
By-Laws was contained in the notice of such special meeting.
-16-