BYLAWS OF JACK ASSET SUB INC.
ARTICLE I
Meetings of Stockholders; Stockholders'
Consent in Lieu of Meeting
SECTION 1.01. Annual Meeting. The annual meeting of the stockholders
for the election of directors, and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, date and
hour as shall be fixed by the Board of Directors and designated in the notice
or waiver of notice thereof; except that no annual meeting need be held if all
actions, including the election of directors, required by the General
Corporation Law of the State of Delaware to be taken at a stockholders' annual
meeting are taken by written consent in lieu of meeting pursuant to Section
1.03 of this Article.
SECTION 1.02. Special Meetings. A special meeting of the
stockholders for any purpose or purposes may be called by the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the corporation or a stockholder or stockholders holding of
record at least a majority of the shares of Common Stock of the corporation
issued and outstanding, such meeting to be held at such place, date and hour
as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Stockholders' Consent in Lieu of Meeting. Any action
required by the laws of the State of
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Delaware to be taken at any annual or special meeting of the stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by all the stockholders.
SECTION 1.04. Quorum and Adjournment. Except as otherwise provided
by law, by the Certificate of Incorporation of the corporation or by these
Bylaws, the presence, in person or by proxy, of the holders of a majority of
the aggregate voting power of the stock issued and outstanding, entitled to
vote thereat, shall be requisite and shall constitute a quorum for the
transaction of business at all meetings of stockholders. If, however, such a
quorum shall not be present or represented at any meeting of stockholders, the
stockholders present, although less than a quorum, shall have the power to
adjourn the meeting.
SECTION 1.05. Majority Vote Required. When a quorum is present at
any meeting of stockholders, the affirmative vote of the majority of the
aggregate voting power of the shares present in person or represented by proxy
at the meeting and entitled to vote on the subject matter shall constitute the
act of the stockholders, unless
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by express provision of law, the Certificate of Incorporation or these Bylaws
a different vote is required, in which case such express provision shall
govern and control.
SECTION 1.06. Manner of Voting. At each meeting of stockholders,
each stockholder having the right to vote shall be entitled to vote in person
or by proxy. Proxies need not be filed with the Secretary of the corporation
until the meeting is called to order, but shall be filed before being voted.
Each stockholder shall be entitled to vote each share of stock having voting
power registered in his or her name on the books of the corporation on the
record date fixed, as provided in Section 6.07 of these Bylaws, for the
determination of stockholders entitled to vote at such meeting. No election of
directors need be by written ballot.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers. The management of the affairs of the
corporation shall be vested in the Board of Directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are
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not by law or by the Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
SECTION 2.02. Number and Term of Office. The number of directors
which shall constitute the whole Board of Directors shall be fixed from time
to time by a vote of a majority of the whole Board of Directors. The term
"whole Board of Directors" is used herein to refer to the total number of
directors which the corporation would have if there were no vacancies.
Directors need not be stockhold ers. Each director shall hold office until his
successor is elected and qualified, or until his earlier death or resig nation
or removal in the manner hereinafter provided.
SECTION 2.03. Resignation, Removal and Vacancies. Any director may
resign at any time by giving written notice of his resignation to the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the corporation. 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.
Any director or the entire Board of Directors may be removed, with
or without cause, at any time by the holders of a majority of the shares then
entitled to vote at
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an election of directors or by written consent of the stockholders pursuant to
Section 1.03 of Article I hereof.
Vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director.
SECTION 2.04. Meetings. (a) Annual Meeting. As soon as practicable
after each annual election of directors, the Board of Directors shall meet for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to Section
2.05 of this Article.
(b) Other Meetings. Other meetings of the Board of Directors shall
be held at such times and places as the Board of Directors, the Chairman of
the Board of Directors or the President shall from time to time determine.
(c) Notice of Meetings. The Secretary of the corporation shall give
notice to each director of each meeting, including the time, place and purpose
of such meeting. Notice of each such meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least two
days before the day on which such meeting is to be held, or shall be sent to
him at such
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place by telegraph, cable, wireless or other form of recorded communication,
or be delivered personally or by telephone not later than the day before the
day on which such meeting is to be held, but notice need not be given to any
director who shall attend such meeting. A written waiver of notice, signed by
the person entitled thereto, whether before or after the time of the meeting
stated therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board of Directors may hold its meetings
at such place or places within or without the State of Delaware as the Board
of Directors may from time to time determine, or as shall be designated in the
respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. One-third of the total number of
directors then in office (but not less than two) shall be present in person at
any meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting, and the vote of a majority of those
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board of Directors,
except as otherwise expressly required by law or these Bylaws. In the absence
of a quorum for any such meeting, a majority of
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the directors present thereat may adjourn such meeting from time to time until
a quorum shall be present.
(f) Organization. At each meeting of the Board of Directors, one of
the following shall act as chairman of the meeting and preside, in the
following order of precedence:
(i) the Chairman of the Board of Directors;
(ii) the President;
(iii) any director chosen by a majority of the directors present.
The Secretary of the corporation or, in the case of his absence, any person
(who shall be an Assistant Secretary of the corporation, if an Assistant
Secretary of the corporation is present) whom the Chairman of the Board of
Directors shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 2.05. Directors' Consent in Lieu of Meeting. 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
of Directors or committee, as the case may be, consent thereto in writing and
the writing or writings are filed with the minutes or the proceedings of the
Board of Directors or committee.
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SECTION 2.06. Action by Means of Conference Telephone or Similar
Communications Equipment. Any one or more members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors or any such 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 by such means shall constitute presence in person at such meeting.
ARTICLE III
Committees of the Board
SECTION 3.01. Appointment of Executive Committee. The Board of
Directors may from time to time by resolution passed by a majority of the
whole Board of Directors designate from its members an Executive Committee to
serve at the pleasure of the Board of Directors. The Chairman of the Executive
Committee shall be designated by the Board of Directors. The Board of
Directors may designate one or more directors as alternate members of the
Executive Committee, who may replace any absent or disqualified member or
members at any meeting of the Executive Committee. The Board of Directors
shall have power at any time to change the
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membership of the Executive Committee, to fill all vacancies in it and to
discharge it, either with or without cause.
SECTION 3.02. Procedures of Executive Committee. The Executive
Committee, by a vote of a majority of its mem bers, shall fix by whom its
meetings may be called and the manner of calling and holding its meetings,
shall determine the number of its members requisite to constitute a quorum for
the transaction of business and shall prescribe its own rules of procedure, no
change in which shall be made except by a majority vote of its members or by
the Board of Directors.
SECTION 3.03. Powers of Executive Committee. During the intervals
between the meetings of the Board of Directors, unless otherwise determined
from time to time by resolution passed by the whole Board of Directors, the
Executive Committee shall possess and may exercise all the powers and
authority of the Board of Directors in the management and direction of the
business and affairs of the corporation to the extent permitted by the General
Corporation Law of Delaware, and may authorize the seal of the corporation to
be affixed to all papers which may
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require it, except that the Executive Committee shall not have power or
authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolida tion;
(c) recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets;
(d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) submitting to shareholders of any action which pursuant to the
General Corporation Law of the State of Delaware requires shareholders'
approval;
(f) filling vacancies in the Board of Directors or in any committee
or fixing compensation of members of the Board of Directors for serving
on the Board of Directors or on any committee;
(g) amending or repealing the Bylaws; (h) declaring a dividend or
authorizing the issuance of stock; or
(i) amending or repealing any resolution of the Board of Directors
which by its terms is not so amendable or repealable.
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SECTION 3.04. Reports of Executive Committee. The Executive
Committee shall keep regular minutes of its proceedings, and all action by the
Executive Committee shall be reported promptly to the Board of Directors. Such
action shall be subject to review by the Board of Directors, provided that no
rights of third parties shall be affected by such review.
SECTION 3.05. Other Committees. The Board of Directors, by
resolution adopted by a majority of the whole Board of Directors, may
designate from among its members one or more other committees, each of which
shall have such authority of the Board of Directors as may be specified in the
resolution of the Board of Directors designating such committee; provided,
however, that any such committee so designated shall not have any powers not
allowed to the Executive Committee under Section 3.03 of this Article III. The
Board of Directors shall have power at any time to change the members of any
such committee, designate alternate members of any such committee and fill
vacancies therein; and any such committee shall serve at the pleasure of the
Board of Directors.
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ARTICLE IV
Officers
SECTION 4.01. Executive Officers. The executive officers of the
corporation shall be a President, a Secre tary and a Treasurer and may include
a Chairman of the Board of Directors, one or more Vice Presidents and one or
more Assistant Secretaries or Assistant Treasurers. Any two or more offices
may be held by the same person.
SECTION 4.02. Authority and Duties. All offi cers, as between
themselves and the corporation, shall have such authority and perform such
duties in the management of the corporation as may be provided in these Bylaws
or, to the extent not so provided, by the Board of Directors.
SECTION 4.03. Term of Office, Resignation and Removal. All officers
shall be elected or appointed by the Board of Directors and shall hold office
for such term as may be prescribed by the Board of Directors. The Chairman of
the Board of Directors, if any, and the President shall be elected or
appointed from among the members of the Board of Directors. Each officer shall
hold office until his successor has been elected or appointed and qualified or
his earlier death or resignation or removal in the manner hereinafter
provided. The Board of Directors may require
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any officer to give security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the
President or the Secretary of the corporation, and such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective is not specified therein, at the time it is accepted by action of
the Board of Directors. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board of
Directors shall be subject to removal at any time by the Board of Directors
with or without cause.
SECTION 4.04. Vacancies. If an office becomes vacant for any reason,
the Board of Directors shall fill such vacancy. Any officer so appointed or
elected by the Board of Directors shall serve only until such time as the
unexpired term of his predecessor shall have expired unless reelected or
reappointed by the Board of Directors.
SECTION 4.05. Chairman of the Board of Directors. If there shall be
a Chairman of the Board of Directors, he shall preside at meetings of the
Board of Directors and of the stockholders at which he is present, and shall
give counsel and advice to the Board of Directors and the
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officers of the corporation on all subjects touching the welfare of the
corporation and the conduct of its business. He shall perform such other
duties as the Board of Directors may from time to time determine. Except as
otherwise provided by resolution of the Board of Directors he shall be ex
officio a member of all committees of the Board of Directors.
SECTION 4.06. The President. The President shall be the Chief
Executive Officer of the corporation and, unless the Chairman of the Board of
Directors be present or the Board of Directors has provided otherwise by
resolution, he shall preside at all meetings of the Board of Directors and the
stockholders at which he is present. He shall have general and active
management and control of the business and affairs of the corporation subject
to the control of the Board of Directors and the Executive Committee, if any,
and shall see that all orders and resolutions of the Board of Directors and
the Executive Committee, if any, are carried into effect.
SECTION 4.07. Vice Presidents. The Vice Presi dent or, if there be
more than one, the Vice Presidents in the order of their seniority or in any
other order deter mined by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and exercise
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the powers of the President, and shall generally assist the President and
perform such other duties as the Board of Directors or the President shall
prescribe.
SECTION 4.08. The Secretary. The Secretary of the corporation shall,
to the extent practicable, attend all meetings of the Board of Directors and
all meetings of the stockholders and shall 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 standing committees when required. He shall give, or cause to
be given, notice of all meetings of the stockholders and of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or the President, under whose supervision he shall perform
such duties. He shall keep in safe custody the seal of the corporation and
affix the same to any duly authorized 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 or Assistant Treasurer. He shall keep in
safe custody the certificate books and stockholder records and such other
books and records as the Board of Directors may direct and shall perform all
other duties as from time to time may be assigned to him by the Chairman of
the Board of Directors, the President or the Board of Directors.
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SECTION 4.09. Assistant Secretaries. The Assis tant Secretaries of
the corporation, if any, in order of their seniority or in any other order
determined by the Board of Directors shall, in the absence or disability of
the Secretary of the corporation, perform the duties and exercise the powers
of the Secretary of the corporation and shall perform such other duties as the
Board of Directors or the Secretary of the corporation shall prescribe.
SECTION 4.10. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects to the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors. The Treasurer 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 of Directors, or whenever they may require it, an
account of all his transactions as Treasurer and of the financial condition of
the corporation; and, in general, perform all the duties incident to the
office of Treasurer and such other duties as from time to
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time may be assigned to him by the President or the Board of Directors.
SECTION 4.11. Assistant Treasurers. The Assis tant Treasurers, if
any, in the order of their seniority or in any other order determined by the
Board of Directors, shall in the absence or disability of the Treasurer
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties as the Board of Directors or the Treasurer shall prescribe.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, etc.
SECTION 5.01. Execution of Documents. The Board of Directors shall
designate the officers, employees and agents of the corporation who shall have
power to execute and deliver deeds, contracts, mortgages, bonds, debentures,
checks, drafts and other orders for the payment of money and other documents
for and in the name of the corporation, and may authorize such officers,
employees and agents to delegate such power (including authority to
redelegate) by written instrument to other officers, employees or agents of
the corporation; and, unless so designated or expressly authorized by these
Bylaws, no officer or agent or employee shall have any power or authority to
bind the corporation by
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any contract or engagement or to pledge its credit or to render it liable
pecuniarily for any purpose or to any amount.
SECTION 5.02. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
or otherwise as the Board of Directors or Treasurer or any other officer of
the corporation to whom power in this respect shall have been given by the
Board of Directors shall select.
SECTION 5.03. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board of Directors shall designate the officers of the
corporation who shall have authority from time to time to appoint an agent or
agents of the corporation to exercise in the name and on behalf of the
corporation the powers and rights which the corporation may have as the holder
of stock or other securities in any other corporation, and to vote or consent
in respect of such stock or securities; such designated officers may instruct
the person or persons so appointed as to the manner of exercising such powers
and rights; and such designated officers may execute or cause to be executed
in the name and on behalf of the corporation and under its corporate seal, or
otherwise, such written proxies, powers of attorney or other instruments as
they may deem necessary
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or proper in order that the corporation may exercise its said powers and
rights.
ARTICLE VI
Shares and Their Transfer; Fixing Record Date
SECTION 6.01. Certificates for Shares. Every owner of stock of the
corporation shall be entitled to have a certificate certifying the number and
class of shares owned by him in the corporation, which shall otherwise be in
such form as shall be prescribed by the Board of Directors. Certificates of
each class shall be issued in consecutive order and shall be numbered in the
order of their issue, and shall be signed by, or in the name of the
corporation by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the corporation.
SECTION 6.02. Record. A record (herein called the stock record) in
one or more counterparts shall be kept of the name of the person, firm or
corporation owning the shares represented by each certificate for stock of the
corporation issued, the number of shares represented by each such certificate,
the date thereof and, in the case of cancelation, the date of cancelation.
Except as otherwise expressly required by law, the person in whose name shares
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of stock stand on the stock record of the corporation shall be deemed the
owner thereof for all purposes as regards the corporation.
SECTION 6.03. Registration of Stock. Registra tion of transfers of
shares of the corporation shall be made only on the books of the corporation
upon request of the registered holder thereof, or of his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation, and upon the surrender of the certificate or certificates for
such shares properly endorsed or accompanied by a stock power duly executed.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall
designate to the Secretary of the corporation an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and,
if any stockholder shall fail to designate such address, corporate notices may
be served upon him by mail directed to him at his post office address, if any,
as the same appears on the share record books of the corporation or at his
last known post office address.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. The Board
of Directors or a committee designated thereby with power so to act may, in
its discretion, cause to be issued a new certificate or
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certificates for stock of the corporation in place of any certificate issued
by it and reported to have been lost, destroyed or mutilated, upon the
surrender of the mutilated certificates or, in the case of loss or destruction
of the certificate, upon satisfactory proof of such loss or destruction, and
the Board of Directors or such committee may, in its discretion, require the
owner of the lost or destroyed certificate or his legal representative to give
the corporation a bond in such sum and with such surety or sureties as it may
direct to indemnify the corporation against any claim that may be made against
it on account of the alleged loss or destruction of any such certificate.
SECTION 6.06. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient, not inconsistent with these
Bylaws, concerning the issue, transfer and registration of certificates for
stock of the corporation.
SECTION 6.07. Fixing Date for Determination of Stockholders of
Record. 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 to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled
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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, in advance, a record date, which shall not be more than 50 nor less
than 10 days before the date of such meeting, nor more than 50 days prior to
any other action. A determination of stockholders entitled to notice of or to
vote at a meeting of the 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.
ARTICLE VII
Seal
The Board of Directors shall provide a corporate seal, which shall
be in the form of a circle and shall bear the full name of the corporation and
the words and figures "Corporate Seal Delaware 1999".
ARTICLE VIII
Fiscal Year
The fiscal year of the corporation shall end on the 31st day of
December in each year unless changed by resolution of the Board of Directors.
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ARTICLE IX
Indemnification and Insurance
To the fullest extent permitted by the laws of the State of
Delaware:
SECTION 9.01. Indemnification. (a) The corporation shall indemnify
any person (and his heirs, executors or administrators) who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (brought in the right of the corporation or
otherwise), whether civil, criminal, administrative or investigative, and
whether formal or informal, including appeals, 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, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, for and against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or such heirs, executors or administrators in
connection with such action, suit or proceeding, including appeals.
(b) The corporation shall pay expenses incurred in defending any
action, suit or proceeding described in
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subsection (a) of this Section in advance of the final disposition of such
action, suit or proceeding, including appeals, upon receipt of an undertaking
by or on behalf of such person seeking indemnification under this Article to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation.
SECTION 9.02. Insurance for Indemnification. The corporation may
purchase and maintain insurance on behalf of any person described in
subsection (a) of Section 9.01 against any liability asserted against him,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article or otherwise.
SECTION 9.03. Scope of this Article. The provisions of this Article
shall be applicable to all actions, claims, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or omissions to
act occurring before or after its adoption. The provisions of this Article
shall be deemed to be a contract between the corporation and each director,
officer, employee or agent who serves in such capacity at any time while this
Article and the relevant provisions of the laws of the State of Delaware and
other applicable law, if any, are in effect, and any repeal or modification
thereof shall
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not affect any rights or obligations then existing with respect to any state
of facts or any action, suit or proceeding then or theretofore existing, or
any action, suit or proceeding thereafter brought or threatened based in whole
or in part on any such state of facts. If any provision of this Article shall
be found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining provisions
hereof. The rights of indemnification provided in this Article shall neither
be exclusive of, nor be deemed in limitation of, any rights to which any such
officer, director, employee or agent may otherwise be entitled or permitted by
contract, the Certificate of Incorporation, vote of stockholders or directors
or otherwise, or as a matter of law, both as to actions in his official
capacity and actions in any other capacity while holding such office, it being
the policy of the corporation that indemnification of the specified
individuals shall be made to the fullest extent permitted by law.
SECTION 9.04. Definitions. For purposes of this Article, references
to "other enterprise" shall include any employee benefit plan; 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
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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.
ARTICLE X
Waiver of Notice
Whenever any notice whatever is required to be given by these Bylaws
or the Certificate of Incorporation of the corporation or the laws of the
State of Delaware, the person entitled thereto may, in person or by attorney
thereunto authorized, in writing or by telegraph, cable or other form of
recorded communication, waive such notice, whether before or after the meeting
or other matter in respect of which such notice is given, and in such event
such notice need not be given to such person and such waiver shall be deemed
equivalent to such notice.
ARTICLE XI
Amendments
Any Bylaw (including these Bylaws) may be adopted, amended or
repealed by the Board of Directors in any manner not inconsistent with the
laws of the State of Delaware or the Certificate of Incorporation.