EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
EQUIDYNE CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I.
OFFICES
Section 1. Registered Agent and Office. The registered agent of Equidyne
Corporation (the "Corporation") shall be Corporation Service Company. The
registered office of the Corporation shall be 2711 Centerville Road, Suite 400,
in the City of Wilmington, County of New Castle, State of Delaware 19808.
Section 2. Other Offices. The Corporation may also have offices in such
other places both within and without the State of Delaware as the Board of
Directors of the Corporation (the "Board of Directors") may from time to time
determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. If required by applicable law, an annual meeting
of stockholders shall be held for the election of directors at such date, time
and place, if any, as shall be designated from time to time by the Board of
Directors. Any other proper business may be transacted at the annual meeting.
Section 2. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman, the Chief Executive
Officer or the President and shall be called by the Chief Executive Officer,
President or Secretary at the request in writing of a majority of the members of
the Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 3. Stockholder List. 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 the 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 at least ten days prior to the meeting as required by
applicable law. The list of stockholders shall also be open to examination at
the meeting as required by applicable law. Except as otherwise provided by law,
the stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list of stockholders or the books of
the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 4. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a notice of the meeting shall be
given that shall state the place, if any, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the Certificate of Incorporation or
these By-Laws, the notice of any meeting shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 5. Quorum. The holders of a majority in voting power of the issued
and outstanding shares of stock entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
statute or by the Certificate of Incorporation or these By-Laws. Shares of its
own stock belonging to the Corporation or to another corporation, if a majority
of the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided,
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however, that the foregoing shall not limit the right of the Corporation or any
subsidiary of the Corporation to vote stock, including but not limited to its
own stock, held by it in a fiduciary capacity.
Section 6. Adjournments. If a quorum shall not be present or represented at
any meeting of the stockholders, the holders of a majority in voting power
thereat, present in person or represented by proxy, or the chairman of the
meeting shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. 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 to each stockholder of
record entitled to vote at the meeting.
Section 7. Voting. Unless otherwise provided in the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of the capital stock held by him
having voting power upon the matter in question. When a quorum is present at any
meeting for the election of directors, a plurality of the votes cast of shares
present in person or represented by proxy at the meeting and entitled to vote
for the election of directors shall be sufficient to elect directors. When a
quorum is present at any meeting for all other elections or questions, a
majority of the votes cast of shares present in person or represented by proxy
at the meeting and entitled to vote on the election or question shall be
sufficient to decide such election or question, unless the election or question
is one upon which by express provision of the Certificate of Incorporation,
these By-Laws, the rules or regulations of any stock exchange applicable to the
Corporation, or applicable law or regulation, a different vote is required in
which case such express provision shall govern and control the decision of such
election or question. Voting at meetings of stockholders need not be by written
ballot and, unless otherwise required by law, need not be conducted by
inspectors of election unless so determined by the Board of Directors or the
chairman of the meeting.
Section 8. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent in lieu of a meeting may authorize another
person or persons to act for him by proxy, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period. A
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by delivering a revocation of
the proxy or a new proxy in accordance with applicable law bearing a later date
to the Secretary of the Corporation.
Section 9. Organization. Meetings of stockholders shall be presided over by
the Chairman of the Board, if any, or in his absence by the Vice Chairman of the
Board, if any, or in his absence by the Chief Executive Officer, or in his
absence by the President, or in his absence by a Vice-President, or in the
absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his absence
or unavailability, the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 10. Conduct of Meetings. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts, in the
judgment of such chairman, as are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) establishment of an agenda or order of business
for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the chairman of
the meeting shall determine; (iv) opening and closing of the polls for each
matter upon which the stockholders will vote; (v) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (vi) limitations
on the time allotted to questions or comments by participants. Unless and to the
extent determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
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Section 11. Advance Notice of Stockholder Business. At any annual meeting
of the stockholders, only such business shall be conducted as shall have been
brought before the meeting (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the Corporation who is entitled to vote with
respect thereto and who complies with the notice procedures set forth in this
Section 11. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in voting to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered or mailed to and received at the principal executive offices of the
Corporation not less than sixty days nor more than ninety days prior to the date
of the annual meeting; provided, however, that in the event that less than fifty
days' notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary shall set forth as
to each matter such stockholder proposes to bring before the annual meeting, the
following:
(i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting business at the annual meeting;
(ii) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business;
(iii) the class and number of shares of the Corporation's voting stock that
are beneficially owned by such stockholder; and
(iv) any material interest of such stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be brought before or conducted at an annual meeting except in accordance
with the provisions of this Section 11. The chairman of the annual meeting
shall, if the facts so warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this Section 11 and, if he should so determine, he shall so
declare to the meeting and any such business so determined to be not properly
brought before the meeting shall not be transacted.
Section 12. Inspectors of Election. The Corporation may, and shall if
required by law, in advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the Corporation, to act at the
meeting or any adjournment thereof and to make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath to execute faithfully the duties of inspector with strict impartiality
and according to the best of his ability. The inspector or inspectors so
appointed or designated shall (i) ascertain the number of shares of capital
stock of the Corporation outstanding and the voting power of each such share,
(ii) determine the shares of capital stock of the Corporation represented at the
meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares of capital stock of the
Corporation represented at the meeting and such inspectors' count of all votes
and ballots. Such certification and report shall specify such other information
as may be required by law. In determining the validity and counting of proxies
and ballots cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector
at such election.
ARTICLE III.
DIRECTORS
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Section 1. General Powers. The business of the Corporation shall be managed
by or under the direction of its Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders.
Section 2. Number; Term. The number of directors that shall constitute the
entire board shall be not less than four nor more than seven. Within the limits
above specified, the number of directors shall be determined from time to time
by resolution of the Board of Directors. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3 of this
Article, and each director elected shall hold office until his successor is
elected and qualified, or until his death, or until he shall have resigned, or
have been removed, as hereinafter provided in these By-Laws, or as otherwise
provided by statute or the Certificate of Incorporation. Directors need not be
stockholders.
Section 3. Vacancies. Vacancies 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, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the entire Board of
Directors (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
Section 4. Place of Meeting. The Board of Directors of the Corporation may
hold meetings, both annual, regular and special, either within or without the
State of Delaware, as the Board of Directors may from time to time determine.
Section 5. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of the stockholders,
on the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. Such meeting may be held at any other
time or place which shall be specified in a notice thereof given as hereinafter
provided in Section 7 of this Article III.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such time and place as the Board of Directors may from time to
time determine. If any day fixed for a regular meeting shall be a legal holiday
at the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day. Notice of regular meetings of the Board of Directors
need not be given except as otherwise required by statute or these By-Laws.
Section 7. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman, the Chief Executive Officer, or the President on 24
hours notice to each director, special meetings shall be called by the President
or Secretary in like manner and on like notice on the written request of two
directors unless the Board of Directors consists of only one director; in which
case special meeting shall be called by the President or Secretary in like
manner and on like notice on the written request of the sole director.
Section 8. Quorum. At all meetings of the Board of Directors a majority of
the directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Consent. 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 of any Committee thereof may
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be taken without a meeting, if all members of the Board of Directors or
Committee, as the case may be, consent thereto in writing or by electronic
transmission and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board of
Directors or Committee in accordance with applicable law.
Section 10. Telephonic Participation. 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 of Directors, may
participate in a meeting of the Board of Directors, or any Committee, by means
of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
Section 11. Compensation. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for attending
Committee meetings.
Section 12. Removal of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any director or the entire Board
of Directors may be removed, with or without cause, by the holders of a majority
in voting power of the outstanding shares of capital stock of the Corporation
then entitled to vote at an election of directors.
Section 13. Nominating Procedure. Only persons who are nominated in
accordance with the procedures set forth in this Section 13 shall be eligible
for election as directors of the Corporation by stockholders. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of stockholders at which Directors are to be elected only (i) by or at
the direction of the Board of Directors; or (ii) by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth below. Nominations for election as
a director of the Corporation, other than those made by or at the direction of
the Board of Directors, shall be made by timely notice in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered or mailed to and received at the principal executive offices of the
Corporation not less than sixty days or more than ninety days prior to the date
of the meeting; provided, however, that in the event that less than fifty days'
notice or prior disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice shall set forth:
(x) as to each person whom such stockholder proposes to nominate for
election or reelection as a Director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); and
(y) as to the stockholder giving the notice (I) the name and address, as
they appear on the Corporation's books, of such stockholder, and (II) the class
and number of shares of the Corporation's voting capital stock that are
beneficially owned by such stockholder.
At the request of the Board of Directors, any person nominated by the Board
of Directors for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with
the provisions of this Section 13. The chairman of the meeting shall, if the
facts so warrant, determine that a nomination was not made in accordance with
such provisions and, if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
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ARTICLE IV.
COMMITTEES OF DIRECTORS
Section 1. Committees. The Board of Directors may designate one or more
Committees, each Committee to consist of one or more of the directors of the
Corporation. The Board of Directors 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, she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in place of any such absent or disqualified member. Any such
Committee, to the extent permitted by law and to the extent such powers and
authority are specifically delegated to such Committee in the resolutions(s) of
the Board of Directors relating to such Committee, 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 to be affixed to all papers which may require it. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, or to dissolve any such committee.
Section 2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these By-Laws.
ARTICLE V.
NOTICES
Section 1. General. 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, except as otherwise provided herein or
permitted by applicable law, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by facsimile or other means of electronic
transmission as permitted by the statutes.
Section 2. Waiver. 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, given by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. 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 a waiver of notice.
ARTICLE VI.
OFFICERS
Section 1. Positions; Terms. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a Chairman of the Board, a Chief
Executive Officer, a President, a Vice-President, a Secretary and a Treasurer.
The Board of Directors at its first meeting after each annual meeting of
stockholders shall choose a Chairman of the Board, a Chief Executive Officer, a
President, one or more Vice-Presidents, a Secretary and a Treasurer. The Board
of Directors may also choose a Vice Chairman, additional Vice-Presidents, and
one or more Assistant Secretaries and Assistant Treasurers. Any number of
offices may be held by the same person, unless the
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statute, the Certificate of Incorporation or these By-Laws otherwise provide.
The officers of the Corporation shall hold office until their successors are
chosen and qualify. Any officer elected or appointed by the Board of Directors
may be removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
Section 2. Appointments. The Board of Directors may appoint, or delegate to
the Chairman, the Chief Executive Officer or the President the power to appoint,
such other officers (including one or more Assistant Vice-Presidents, Assistant
Treasurers and Assistant Secretaries) and agents as it or he shall deem
necessary who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors or the officer making such appointment.
Section 3. Resignation. Any officer of the Corporation may resign at any
time by giving notice of his resignation to the Board of Directors, the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. Any
such resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not be specified therein, immediately upon
its receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4. Removal. Any officer or agent of the Corporation may be removed,
either with or without cause, at any time, by the vote of the majority of the
entire Board of Directors at any meeting of the Board of Directors called for
such purpose. Any officer or agent appointment by the Chairman of the Board, the
Chief Executive Officer or the President pursuant to Section 2 of this Article
may be removed, either with or without cause, by the Chairman of the Board, the
Chief Executive Officer or President. Such removal shall be without prejudice to
the contractual rights, if any, of the person so removed.
Section 5. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors; provided, however, that
the Board of Directors may delegate to the Chairman of the Board, the Chief
Executive Officer or the President the power to fix the compensation of officers
and agents appointed by the Chairman of the Board, the Chief Executive Officer
or the President, as the case may be. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that he is also a
director of the Corporation, but any such officer who shall also be a director
shall not vote in the determination of the amount of compensation paid to him.
Section 6. Chairman of the Board of Directors. The Chairman of the Board,
if one be elected, shall be the chief executive officer of the Corporation; he
shall preside at all meetings of the stockholders and directors, shall be ex
officio a member of all standing committees, shall have general and active
management of the business of the Corporation, shall see that all orders and
resolutions of the Board of Directors are carried into effect and shall perform
such other duties as the Board of Directors shall prescribe; provided, however,
that a person serving as acting, interim or non-executive Chairman of the Board
shall not also be chief executive officer of the Corporation nor shall such
person have general and active management of the business of the Corporation.
Section 7. Chief Executive Officer. The Chief Executive Officer, if other
than the Chairman of the Board, shall be the chief executive officer of the
Corporation. He shall possess power to sign all certificates, contracts, and
other instruments of the Corporation. He shall, in the absence of the Chairman
of the Board, preside at all of the meetings of the stockholders and of the
Board of Directors. He shall perform all such other duties as are incident to
his office or are properly required of him by the Board of Directors.
Section 8. Vice Chairman of the Board. The Vice Chairman of the Board, if
one be elected, shall have such powers and perform all such duties as from time
to time may be assigned to him by the Board of Directors or the Chairman of the
Board and, unless otherwise provided by the Board of Directors, shall in the
case of the absence or inability to act of the Chairman of the Board and the
Chief Executive Officer, perform the duties of the Chairman of the Board and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the Chairman of the Board.
Section 9. President. The President of the Corporation shall be the chief
operating and administrative officer of the Corporation. If there is no Chairman
or Vice Chairman of the Board and no Chief
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Executive Officer or during the absence or disability of the Chairman and Vice
Chairman of the Board and the Chief Executive Officer, the President shall
exercise all of the powers and discharge all of the duties of the Chairman of
the Board. He shall possess power to sign all certificates, contracts, and other
instruments of the Corporation. He shall, in the absence of the Chairman and
Vice Chairman of the Board and the Chief Executive Officer, preside at all of
the meetings of the stockholders and of the Board of Directors. He shall perform
all such other duties as are incident to his office or are properly required of
him by the Board of Directors. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
Section 10. Vice-Presidents. In the absence of the President or in the
event of his inability or refusal to act, the Board of Directors shall designate
the person(s) who shall perform the duties of President, and, in the event of a
failure of the Board of Directors to make such a designation within two weeks
after the commencement of such absence or inability to act of the President, the
Vice-President (or in the event there be more than one Vice-President, the
Vice-Presidents in the order designated by the Board of Directors, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. The Vice-Presidents
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 11. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all the proceedings
of the meetings of the Corporation and of the Board of Directors 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 special meetings of the Board of Directors, the Chief
Executive Officer or the President, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and he, or an
Assistant Secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
Section 12. Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 13. Treasurer. The Treasurer shall have the custody of the
corporate funds and 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 in 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 of the Corporation for
such disbursements, and shall render to the President, Chief Executive Officer
and Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all his transactions as Treasurer and the financial
condition of the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 14. Assistant Treasurer. The Assistant Treasurer, or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
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ARTICLE VII.
CONTRACTS, LOANS, BANK ACCOUNTS, ETC.
Section 1. Execution of Contracts. Except as otherwise required by statute,
the Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board of Directors may from time to time direct. Such
authority may be general or confined to specific instances as the Board of
Directors may determine. Unless authorized by the Board of Directors or
expressly permitted by these By-Laws, an officer or agent or employee shall not
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it pecuniarily liable for any
purpose or to any amount.
Section 2. Loans. Unless the Board of Directors shall otherwise determine,
either the Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer or the President, singly, may effect loans and advances at any
time for the Corporation or guarantee any loans and advances to any subsidiary
of the Corporation, from any bank, trust company or other institution, or from
any firm, corporation or individual, and for such loans and advances may make,
execute and deliver promissory notes, bonds or other certificates or evidences
or indebtedness of the Corporation, or guarantee of indebtedness of subsidiaries
of the Corporation, but no officer or officers other than in the ordinary course
of business shall mortgage, pledge, hypothecate or transfer any securities or
other property of the Corporation, except when authorized by the Board of
Directors.
Section 3. Check, Drafts, Etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such person or persons and in
such manner as shall from time to time be authorized by the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may from
time to time designate or as may be designated by any officer or officers of the
Corporation to whom such power of designation may from time to time be delegated
by the Board of Directors. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by any officer or agent of the Corporation,
or in such other manner as the Board of Directors may determine.
Section 5. General and Special Bank Accounts. The Board of Directors may
from time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board of
Directors may designate or as may be designated by any officer or officers of
the Corporation to whom such power of designation may from time to time be
delegated by the Board of Directors. The Board of Directors may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-Laws, as it may deem expedient.
Section 6. Proxies in Respect of Securities of other Corporations. Unless
otherwise provided by resolution adopted by the Board of Directors, the Chairman
of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President, or a Vice-President may from time to time appoint an attorney or
attorneys or agent or agents, of the Corporation, in the name and on behalf of
the Corporation to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, any of
whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, all such written proxies or other instruments
as he may deem necessary or proper.
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ARTICLE VIII.
CERTIFICATES OF STOCK
Section 1. Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors or the Chief Executive
Officer, or the President or a Vice-President and the Treasurer or, an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Facsimile Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
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 advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5. 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
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
(other than action by consent 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: (i) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, be not more than sixty (60)
nor less than ten (10) days before the date of such meeting; and (ii) in the
case of any other action (other than action by consent in writing without a
meeting), shall be not more than sixty (60) days prior to such other action. If
no record date is fixed: (i) 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; and (ii) the record date for determining
stockholders for any other purpose (other than action by consent in writing
without a meeting) 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 6. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
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Section 7. Action by Written Consent. (a) 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 date shall not be more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request that the Board of Directors fix a
record date. The Board of Directors shall promptly, but in all events within ten
(10) days after the date on which such written notice is received, adopt a
resolution fixing the record date (unless a record date has previously been
fixed by the Board of Directors pursuant to the first sentence of this Section
7(a)). If no record date has been fixed by the Board of Directors pursuant to
the first sentence of this Section 7(a) or otherwise within ten (10) days after
the date on which such written notice is received, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date after the expiration of such ten (10)
day time period on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or to any
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. If no record date has been
fixed by the Board of Directors pursuant to the first sentence of this Section
7(a), the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting if prior action by the Board of
Directors is required by applicable law shall be at the close of business on the
date on which the Board of Directors adopts the resolution taking such prior
action.
(b) In the event of the delivery, in the manner provided by this Section 7
and applicable law, to the Corporation of written consent or consents to take
corporate action and/or any related revocation or revocations, the Corporation
shall engage an independent inspector or inspectors of elections for the purpose
of performing promptly a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspector or inspectors to
perform such review, no action by written consent and without a meeting shall be
effective until such inspector or inspectors have completed their review,
determined that the requisite number of valid and unrevoked consents delivered
to the Corporation in accordance with this Section 7 and applicable law have
been obtained to authorize or take the action specified in the consents, and
certified such determination for entry in the records of the Corporation kept
for the purpose of recording the proceedings of meetings of stockholders.
Nothing contained in this Section 7(b) shall in any way be construed to suggest
or imply that the Board of Directors or any stockholder shall not be entitled to
contest the validity of any consent or revocation thereof, whether before or
after such certification by the independent inspector or inspectors, or to take
any other action (including, without limitation, the commencement, prosecution
or defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
(c) 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 (60) days
after the earliest dated written consent received in accordance with this
Section 7, a valid written consent or valid written consents signed by a
sufficient number of stockholders to take such action are delivered to the
Corporation in the manner prescribed in this Section 7 and applicable law, and
not revoked.
ARTICLE IX.
GENERAL PROVISIONS
Section 1. Declaration of Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Payment of Dividends. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or
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for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall think conducive to the interest of the
Corporation, and Board of Directors may modify or abolish any such reserve in
the manner in which it was created.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 4. Seal. The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE X.
INDEMNIFICATION
Section 1. Authority. The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any Covered Person (as defined below) who was or is made
or is threatened to be made a party or is otherwise involved in any proceeding
(as defined below) by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in Section 3 of this Article X, the Corporation shall be
required to indemnify a Covered Person in connection with a proceeding (or part
thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized in the
specific case by the Board of Directors of the Corporation.
Section 2. Prepayment of expenses. The Corporation shall to the fullest
extent not prohibited by applicable law pay the expenses (including attorneys'
fees) incurred by a Covered Person in defending any proceeding in advance of its
final disposition, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Covered Person to repay all
amounts advanced if it should be ultimately determined that the Covered Person
is not entitled to be indemnified under this Article X or otherwise.
Section 3. Claims. If a claim for indemnification (following the final
disposition of such action, suit or proceeding) or advancement of expenses under
this Article X is not paid in full within thirty days after a written claim
therefor by the Covered Person has been received by the Corporation, the Covered
Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
Section 4. Nonexclusivity of Rights. The rights conferred on any Covered
Person by this Article X shall not be exclusive of any other rights which such
Covered Person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 5. Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
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Section 6. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or protection
hereunder of any Covered Person in respect of any act or omission occurring
prior to the time of such repeal or modification.
Section 7. Other Indemnification and Prepayment of Expenses. This Article X
shall not limit the right of the Corporation, to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than
Covered Persons when and as authorized by appropriate corporate action.
Section 8. Definitions of "Covered Person" and "proceeding." For purposes
of this Article X, the term "Covered Person" shall mean any person who was as of
January 1, 2003, or at any time thereafter becomes, a director or officer of the
Corporation. For purposes of this Article X, the term "proceeding" shall mean
any action, suit or proceeding, whether civil, criminal, administrative or
investigative.
ARTICLE XI.
AMENDMENTS
Section 1. Stockholders. These By-Laws may be amended, altered or repealed
or new By-Laws may be adopted at any annual or special meeting of the
stockholders; provided, however, that the notice of such meeting shall have been
given as provided in these By-Laws, which notice shall mention that amendment,
alteration or repeal of these By-Laws, or the adoption of new By-Laws, is one of
the purposes of such meeting.
Section 2. Board of Directors. These By-Laws may also be amended, altered
or repealed or new By-Laws may be adopted by the Board of Directors at any
meeting thereof; provided, however, that notice of such meeting shall have been
given as provided in these By-Laws, which notice shall mention that amendment,
alteration or repeal of the By-Laws, or the adoption of new By-Laws, is one of
the purposes of such meeting.
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