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HIRSCH INTERNATIONAL CORP.
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AMENDED AND RESTATED
BY-LAWS
(as of June 20, 1997)
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I. OFFICES
1.1 The registered office and the registered agent of the Corporation shall
be located at such place as the Board of Directors may from time to time
designate.
1.2 The Corporation may also have offices at such other places both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
II. ANNUAL MEETING OF STOCKHOLDERS
2.1 All meetings of Stockholders shall be held at such time and place as
may be fixed from time to time by the Board of Directors.
2.2 Written notice of the Annual Meeting stating the time, place, and
purpose or purposes of the meeting shall be delivered either personally or by
mail, not less than ten nor more than sixty days before the date of the meeting,
to each Stockholder of record entitled to vote at such meeting.
2.3 When a meeting is adjourned to another time or place, it shall not be
necessary to give notice of the adjourned meeting if the time and place to which
the meeting is adjourned are announced at the meeting at which the adjournment
is taken, and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting. However, if after the adjournment
the Board of Directors establishes a new record date for the adjourned meeting,
a notice of the adjourned meeting shall be given to each Stockholder of record
on the new record date.
2.4 Notice of meeting need not be given to any Stockholder who signs a
waiver of notice, in person or by proxy, whether before or after the meeting.
The attendance of any Stockholder at a meeting, in person or by proxy, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice by him.
2.5 Any action required or permitted to be take at a meeting of
Stockholders by statute, the Certificate of Incorporation, or these By-Laws, may
be taken without a meeting upon the written consent of the stockholders entitled
to vote who in the aggregate own the requisite amount of issued and outstanding
shares of stock of the Corporation which constitutes the minimum number of votes
necessary to authorize such action at a meeting at which all Stockholders
entitled to vote thereon were present and voting.
III. SPECIAL MEETING OF STOCKHOLDERS
3.1 Special Meetings of Stockholders for any purpose other than the
election of directors may be held at such time and place within or without the
State of Delaware as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
3.2 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 President or the Board of Directors.
3.3 Written notice of a Special Meeting stating the time, place, and
purpose or purposes of the meeting for which the meting is called, shall be
delivered not less than ten nor more than sixty (60) days before the date of the
meeting, personally, by mail, or by telegram, by or at the direction of the
President, the Secretary, or the officer or persons calling the meeting, to each
Stockholder of record entitled to vote at such meeting.
IV. QUORUM AND VOTING OF STOCK
4.1 The holders of a majority of the shares of stock issued and outstanding
and entitled to vote, represented in person or by proxy, shall constitute a
quorum at all meeting of the Stockholders for the transaction of business,
except as otherwise provided by statute or by the Certificate of Incorporation.
If, however, such quorum shall not be present or represented at any meeting of
the Stockholders, the Stockholders 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, 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.
4.2 If a quorum is present, the affirmative vote of a majority of the
shares of stock represented at the meeting shall be the act of the Stockholders
unless the vote of a greater number of shares of stock is required by law or the
Certificate of Incorporation.
4.3 Each outstanding share of stock, having voting power, shall be entitled
to one vote on each mater submitted to a vote at a meeting of Stockholders,
unless otherwise provided in the Certificate of Incorporation. A Stockholder may
vote either in person or by proxy.
V. DIRECTORS
5.1 The number of Directors which shall constitute the whole Board of
Directors shall be not less than one nor more than seven, such number to be
increased or decreased by an amendment to these By-Laws. Directors need not be
residents of the State of Delaware or Stockholders of the Corporation. The
Directors, other than the first Board of Directors, shall be elected at the
Annual Meeting of the Stockholders, except as hereinafter provided, and each
Director elected shall serve until the next succeeding Annual Meeting and until
his successor shall have been elected and qualified.
5.2 Unless otherwise provided in the Certificate of Incorporation, any
vacancy occurring in the Board of Directors or an increase in the number of
Directors may be filled by the affirmative vote of a majority of the remaining
Directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired portion of the term
of his predecessor in office. Any directorship to be filled by reason of an
increase in the number of Directors shall be filled by election at any Annual
Meeting or at a Special Meeting of Stockholders called for that purpose. A
Director elected to fill newly created directorship shall serve until the next
succeeding Annual Meeting of Stockholders and until his successor shall have
been elected and qualified. If by reason of death, resignation or other cause
the Corporation has no Directors in office, any Stockholder or the executor or
administrator of the deceased Stockholder may call a Special Meeting of
Stockholders for the election of Directors and, over his own signature, shall
give notice of said meeting in accordance with these By-Laws.
5.3 One or more or all the Class A Directors of the Corporation may be
removed for cause by the Class A Stockholders by the affirmative vote of the
majority of the votes cast by the holders of shares entitled to vote for the
election of Class A Directors. One or more or all the Class B Directors of the
Corporation may be removed for or without cause by the Class B Stockholders by
the affirmative vote of the majority of the votes cast by the holders of shares
entitled to vote for the election of Class B Directors.
5.4 The business affairs of the Corporation shall be managed by 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.
5.5 The Directors may keep the books and records of the Corporation, except
such as are required by law to be kept within the state, outside of the State of
Delaware, at such place or places as they may from time to time determine.
5.6 The Board of Directors, by the affirmative vote of a majority of the
Directors then in office, and irrespective of any personal interest of any of
its members, shall have the authority to establish reasonable compensation of
all Directors and Officers of the Corporation.
VI. MEETINGS OF THE BOARD OF DIRECTORS
6.1 Meetings of the Board of Directors, regular or Special, may be held
either within or without the State of Delaware, and at such time and place as
shall be determined by the Board.
6.2 Regular meetings of the Board of Directors may be held upon such
notice, or without notice, and at such time and at such place as shall from time
to time be determined by the Board. 6.3 Special Meetings of the Board of
Directors may be called by the President on ten (10) days notice to each
Director, either personally or by mail or by telegram; Special Meetings shall be
called by the President or Secretary in like manner and on like notice on the
written request of two Directors. Notice need not be given to any Director who
signs a waiver of notice, whether before or after the meeting.
6.4 Attendance of a Director at any meeting shall constitute a waiver of
notice of such meeting, except where a Director attends for the express purpose
of objecting 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 Board of Directors need be
specified in the notice or waiver of notice of such meeting.
6.5 A majority of the then current number of Directors shall constitute a
quorum for the transaction of business unless a greater or lesser number is
required by statute or by the Certificate of Incorporation. The act of a
majority of the Directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors, unless the act of a greater or
lesser number is required by statute or by the Certificate of Incorporation. If
a quorum shall not be present at any meeting 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.
6.6 Unless otherwise provided by the Certificate of Incorporation, any
action required to be taken at a Meeting of the Board, or any committee thereof
may be taken without a meeting and, shall be deemed the action of the Board of
Directors or of a committee thereof, if all Directors or committee member, as
the case may be, execute either before or after the action is taken, a written
consent thereto, and the consent is filed with the records of the Corporation.
VII. EXECUTIVE COMMITTEE OF THE BOARD OF DIRECTORS
7.1 The Board of Directors, by resolution adopted by a majority of the
number of Directors then in office, may designate one or more Directors to
constitute an executive committee, which committee, to the extent provided in
such resolution, shall have and exercise all of the authority of the Board of
Directors in the management of the Corporation, except as otherwise required by
law. Vacancies in the membership of the committee shall be filled by the Board
of Directors at a regular or Special Meeting of the Board of Directors. The
Executive Committee shall keep regular minutes of its proceeding and report the
same to the Board when required.
VIII. NOTICES
8.1 Whenever, under the provisions of the statues 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, 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 telegram.
8.2 Whenever any notice is required to be given by law or under the
Certificate of Incorporation or these By-Laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
IX. OFFICERS
9.1 The Board of Directors at its first meeting after each Annual Meeting
of Stockholders shall choose the Officers, none of whom need be a member of the
Board of Directors.
9.2 The Board of Directors may appoint such Officers and agents as it 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.
9.3 The salaries of all Officers and agents of the Corporation shall be
fixed by the Board of Directors.
9.4 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 with or without cause 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.
THE PRESIDENT
9.5 The President, if one be appointed, shall preside at all meetings of
the Stockholders and in the absence of the Chairman of the Board of Directors,
at the meeting of the Board of Directors, and shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
9.6 The President 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
singing and execution thereof shall be delegated by the Board of Directors to
some other Office or agent of the Corporation.
THE VICE PRESIDENTS
9.7 The Vice President, if one be elected, or if there shall be more than
one, the Vice Presidents in the order determined by the Board of Directors,
shall, in the absence or disability of the President, perform the duties and
exercise the powers of the President and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
9.8 The Secretary, if one be elected, 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 standing
committees when required. The Secretary shall give, or cause to be given, notice
of all meetings of the Stockholders and Special Meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or President. The Secretary 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 Office to affix the
seal of the Corporation and to attest the affixing by his signature.
9.9 The Assistant Secretary, if one be elected, or if there be more than
one, the assistant secretaries in the order determined by the Board of
Directors, shall, in the absence or disability of the Secretary, 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.
THE TREASURER AND ASSISTANT TREASURERS
9.10 The Treasurer, if one be elected, 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 monies 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.
9.11 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 the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
9.12 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.
9.13 The Assistant Treasurer, if one be elected, or, if there shall be more
than one, the Assistant Treasurers in the 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 and have such other powers as the Board of Directors may from time to
time prescribe.
CHIEF FINANCIAL OFFICER
9.14 The Chief Financial Officer, if one be elected, shall have such duties
as may from time to time be prescribed by the Board of Directors.
CHIEF EXECUTIVE OFFICER
9.15 The Chief Executive Officer, if one be elected, shall have such duties
as may from time to time be prescribed by the Board of Directors.
CHIEF OPERATING OFFICER
9.16 The Chief Operating Officer, if one be elected, shall have such duties
as may from time to time be prescribed by the Board of Directors.
X. CERTIFICATES FOR SHARES
10.1 The shares of the Corporation shall be represented by certificates
signed by the President or a Vice President and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the corporation, and
may be sealed with the seal of the Corporation or a facsimile thereof.
10.2 When the Corporation is authorized to issue shares of more than one
class, there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the Corporation will furnish to any
Stockholder upon request and without charge, a full statement of the
designations, preferences, limitations and relative rights of the shares of each
class authorized to be issued and, if the Corporation is authorized to issue any
preferred or special class in series, the variations in the relative rights and
preferences between the shares of each such series so far as the same have been
fixed and determined and the authority of the Board of Directors to fix and
determine the relative rights and preferences of subsequent series.
10.3 The signatures of the Officers of the Corporation upon a certificate
may be facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation. In case any Officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such Officer
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such Officer at the date of its issues.
LOST CERTIFICATES
10.4 The Board of Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the Corporation alleged to have
been lost or destroyed. When authorizing such issue of a new certificate, the
Board of Directors, in its discretion and as a condition precedent to the
issuance thereof, may prescribe such terms and conditions as it deems expedient,
and may require such indemnities as it deems adequate, to protect the
Corporation from any claim that may be made against it with respect to any such
certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
10.5 Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate representing shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto, and the old
certificate canceled and the transaction recorded upon the books of the
Corporation.
CLOSING OF TRANSFER BOOKS
10.6 For the purposes of determining Stockholders entitled to notice of or
to vote at any meeting of Stockholder, or any adjournment thereof or entitled to
receive payment of any dividend, or in order to make a determination of
Stockholders for any other proper purpose, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, sixty (60) days. If the stock transfer books shall be
closed for the purpose of determining Stockholders entitled to notice of or to
vote at a meeting of Stockholders, such books shall be closed for at least ten
(10) days immediately preceding such meeting. In lieu of closing the stock
transfer books, the Board of Directors may fix in advance a date as the record
date for any such determination of Stockholders, such date in any case to be not
more than sixty (60) days and, in case of a meeting of Stockholders, not less
than ten (10) days prior to the date on which the particular action, requiring
such determination of Stockholders, is to be taken. If the stock transfer books
are not closed and no record date is fixed for the determination of Stockholders
entitled to notice of or to vote at a meeting of Stockholders, or Stockholders
entitled to receive payment of a dividend, the record date for the determination
of Stockholders entitled to notice of or to vote at a meeting of Stockholders
shall be the close of business on the day next preceding the day on which notice
is given, or, if no notice is given, the day next preceding the day on which the
meeting is held; and the record date for determining Stockholders for any other
purpose shall be at the close of business on the day on which the resolution of
the board relating thereto is adopted. When a determination of Stockholders
entitled to vote at any meeting of Stockholders has been made as provided in
this section. such determination shall apply to any adjournment thereof.
REGISTERED STOCKHOLDERS
10.7 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 shares 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.
LIST OF STOCKHOLDERS
10.8 The Officer or agent having charge of the transfer books
for shares shall make, and certify a complete list of the Stockholders entitled
to vote at a Stockholders' meeting, or adjournment thereof, arranged in
alphabetical order within each class and series, with the address of, and the
number of shares held by each Stockholder, which list shall be produced and kept
open at the time and place of the meeting and shall be subject to the inspection
of any Stockholder during the whole time of the meeting. Such list shall be
prima facie evidence as to who are the Stockholders entitled to examine such
list or to vote at any meeting of the Stockholders.
XI GENERAL PROVISIONS
DIVIDENDS
11.1 Subject to the provisions of the Certificate of Incorporation relating
thereto, if any, dividends may be declared by the Board of Directors at any
regular or Special Meeting, pursuant to law. Dividends may be paid in cash, in
its bonds, in its own shares or other property including the shares or bonds of
other corporations subject to any provisions of law and of the Certificate of
Incorporation.
11.2 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
Directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
11.3 All checks or demands for money and notes of the Corporation shall be
signed by such Officer or Officers or such other person or persons as the Board
of Directors may from time to time designate.
FISCAL YEAR
11.4 The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
SEAL
11.5 The Corporation 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 in any manner reproduced.
INDEMNIFICATION
11.6 (a) The Corporation shall, to the maximum extent permitted from time
to time under the law of the State of Delaware, indemnify and upon request shall
advance expenses to any person who is or was a party to any threatened, pending
or completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
or has agreed to be a trustee, director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
trustee, director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees and expenses), judgment, fines, penalties and amounts
paid in settlement incurred in connection with the investigation, preparation to
defend or defense of any such action, suit, proceeding or claim. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person.
(b) The Corporation may purchase and maintain insurance on any person who
is or was a trustee, director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a trustee, director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against any liability incurred by him in any such
position or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under Paragraph
11.6(a).
AFFILIATED TRANSACTIONS
11.7 All transactions between the Corporation and any of its officers,
directors or affiliates (except for wholly-owned subsidiaries) must be approved
by a majority of the unaffiliated members of the Board of Directors and be on
terms no less favorable to the Corporation than could be obtained from
unaffiliated third parties and must be in connection with bona fide business
purposes of the Corporation.
11.8 In the event the Corporation makes a loan to an individual affiliate
(other than a short-term advance for travel, business expense, relocation or
similar ordinary operating expenditure), such loan shall be approved by a
majority of the unaffiliated directors of the Corporation.
AMENDMENTS
11.9 These By-Laws may be altered, amended, or repealed or new By-Laws may
be adopted by the affirmative vote of a majority of the Board of Directors at
any regular or Special Meeting of the Board of Directors, subject to any
provision in the Certificate of Incorporation reserving to the Stockholders the
power to adopt, amend, or repeal By-Laws, but By-Laws made by the Board of
Directors may be altered or repealed and new By-Laws made by the Stockholders.
The Stockholders may prescribe that any By-Law made by them shall not be altered
or repealed by the Board of Directors.