EXHIBIT 3.2
By-Laws of
CalComp Technology, Inc.
(formerly, Summagraphics Corporation)
A Delaware Corporation
Restated and Amended on:
July 23, 1996
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings........................................ 1
Section 2. Annual Meeting........................................... 1
Section 3. Special Meetings......................................... 1
Section 4. Notice of Meetings....................................... 1
Section 5. Voting List.............................................. 2
Section 6. Quorum................................................... 2
Section 7. Adjournments............................................. 2
Section 8. Action at Meetings....................................... 2
Section 9. Voting and Proxies....................................... 2
Section 10. Action Without Meeting................................... 3
ARTICLE II
DIRECTORS
Section 1. Number, Election, Tenure and Qualification............... 3
Section 2. Enlargement.............................................. 3
Section 3. Vacancies................................................ 3
Section 4. Resignation and Removal.................................. 4
Section 5. General Powers........................................... 4
Section 6. Chairman of the Board.................................... 4
Section 7. Place of Meetings........................................ 4
Section 8. Regular Meetings......................................... 4
Section 9. Special Meetings......................................... 4
Section 10. Quorum, Action at Meeting, Adjournments.................. 5
Section 11. Action by Consent........................................ 5
Section 12. Telephonic Meetings...................................... 5
Section 13. Committees............................................... 5
Section 14. Compensation............................................. 6
ARTICLE III
OFFICERS
Section 1. Enumeration.............................................. 6
Section 2. Election................................................. 7
Section 3. Tenure................................................... 7
Section 4. President................................................ 7
Section 5. Vice-Presidents.......................................... 7
Section 6. Secretary................................................ 8
Section 7. Assistant Secretaries.................................... 8
Section 8. Treasurer................................................ 8
Section 9. Assistant Treasurers..................................... 9
Section 10. Bond..................................................... 9
ARTICLE IV
NOTICES
Section 1. Delivery................................................. 9
Section 2. Waiver of Notice......................................... 9
ARTICLE V
INDEMNIFICATION
Section 1. Actions other than by or in the Right of
the Corporation.......................................... 10
Section 2. Actions by or in the Right of the Corporation............ 10
Section 3. Success on the Merits.................................... 11
Section 4. Specific Authorization................................... 11
Section 5. Advance Payment.......................................... 11
Section 6. Non-Exclusivity.......................................... 11
Section 7. Insurance................................................ 11
Section 8. Continuation of Indemnification and
Advancement of Expenses................................. 12
Section 9. Severability............................................. 12
Section 10. Intent of Article........................................ 12
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates of Stock.................................... 12
Section 2. Lost Certificates........................................ 12
Section 3. Transfer of Stock........................................ 13
Section 4. Record Date.............................................. 13
Section 5. Registered Stockholders.................................. 13
ARTICLE VII
CERTAIN TRANSACTIONS
Section 1. Transactions with Interested Parties..................... 14
Section 2. Quorum................................................... 14
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends................................................ 15
Section 2. Reserves................................................. 15
Section 3. Checks................................................... 15
Section 4. Fiscal Year.............................................. 15
Section 5. Seal..................................................... 15
ARTICLE IX
AMENDMENTS
CalComp Technology, Inc.
* * * * *
BY-LAWS
* * * * *
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall
-----------------
be held at such place within or without the State of Delaware as may be fixed
from time to time by the board of directors or the chief executive officer, or
if not so designated, at the registered office of the corporation.
Section 2. Annual Meeting. Annual meetings of stockholders shall be
--------------
held on the third Tuesday in April in each year if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 a.m., or at such
other date and time as shall be designated from time to time by the board of
directors or the chief executive officer, at which meeting the stockholders
shall elect by a plurality vote a board of directors and shall transact such
other business as may properly be brought before the meeting. If no annual
meeting is held in accordance with the foregoing provisions, the board of
directors shall cause the meeting to be held as soon thereafter as convenient,
which meeting shall be designated a special meeting in lieu of annual meeting.
Section 3. Special Meetings. Special meetings of the stockholders,
----------------
for any purpose or purposes, may, unless otherwise prescribed by statute or by
the certificate of incorporation, be called by the board of directors or the
chief executive officer and shall be called by the chief executive officer or
secretary at the request in writing of a majority of the board of directors, or
at the request in writing of stockholders owning 10% in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Business transacted at any special meeting shall be limited to matters relating
to the purpose or purposes stated in the notice of meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law,
------------------
written notice of each meeting of stockholders, annual or special, stating the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given not less
than ten or more than sixty days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 5. Voting 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, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city or town where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 6. Quorum. Subject to the provisions of the Certificate of
------
Incorporation, the holders of a majority of the stock issued and outstanding and
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, the certificate of
incorporation or these by-laws.
Section 7. Adjournments. Any meeting of stockholders may be
------------
adjourned from time to time to any other time and to any other place at which a
meeting of stockholders may be held under these by-laws, which time and place
shall be announced at the meeting, by a majority of the stockholders present in
person or represented by proxy at the meeting and entitled to vote, though less
than a quorum, or, if no stockholder is present or represented by proxy, by any
officer entitled to preside at or to act as secretary of such meeting, 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 original meeting. 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 8. Action at Meetings. When a quorum is present at any
------------------
meeting, the vote of the holders of a majority of the stock present in person or
represented by proxy and entitled to vote on the question shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of law, the certificate of incorporation or these by-laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 9. Voting and Proxies. Unless otherwise provided in the
------------------
certificate of incorporation, each stockholder
-2-
shall at every meeting of the stockholders be entitled to one vote for each
share of capital stock having voting power held of record by such stockholder.
Each stockholder entitled to vote at a meeting of stockholders, or to express
consent or dissent to corporate action in writing without a meeting, may
authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period.
Section 10. Action Without Meeting. Any action required to be taken
----------------------
at any annual or special meeting of stockholders, 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 the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE II
DIRECTORS
Section 1. Number, Election, Tenure and Qualification. As provided
------------------------------------------
in the Certificate of Incorporation, the number of directors which shall
constitute the whole board shall be seven (7) or such other number of directors
as is determined by resolution of the board of directors or by the stockholders
at the annual meeting or at any special meeting of stockholders. The directors
shall be elected at the annual meeting or at any special 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, unless
sooner displaced. Directors need not be stockholders.
Section 2. Enlargement. The number of the board of directors may be
-----------
increased at any time by vote of a majority of the directors then in office.
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, by a
sole remaining director or by the stockholders at the annual or any special
meeting of stockholders or by written consent in lieu thereof, 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. In the event of a vacancy in the
-3-
board of directors, the remaining directors, except as otherwise provided by law
or these by-laws, may exercise the powers of the full board until the vacancy is
filled.
Section 4. Resignation and Removal. Any director may resign at any
-----------------------
time upon written notice to the corporation at its principal place of business
or to the chief executive officer or secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event. Any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors, unless otherwise
specified by law or the certificate of incorporation.
Section 5. General Powers. The business and affairs of the
--------------
corporation shall be managed by its board of directors, which may exercise all
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 6. Chairman of the Board. If the board of directors appoints
---------------------
a chairman of the board, such chairman shall, when present, preside at all
meetings of the stockholders and the board of directors. He shall perform such
duties and possess such powers as are customarily vested in the office of the
chairman of the board or as may be vested in him by the board of directors.
Section 7. Place of Meetings. The board of directors may hold
-----------------
meetings, both regular and special, either within or without the State of
Delaware.
Section 8. Regular Meetings. Regular meetings of the board of
----------------
directors shall be held quarterly on the third Tuesday of the month following
the calendar quarter end, or at such other time as the board of directors shall
determine. Regular meetings of the board of directors may be held without
notice of the time of such meetings; provided that, if regular meetings are held
at some time other than the third Tuesday of the month following the calendar
quarter end, any director who is absent when the determination of the meeting
time and place is made shall be given prompt notice of such determination. A
regular meeting of the board of directors may be held without notice immediately
after and at the same place as the annual meeting of stockholders.
Section 9. Special Meetings. Special meetings of the board may be
----------------
called by the chief executive officer, secretary, or on the written request of
two or more directors, or by one director in the event that there is only one
director in office. Two days' notice to each director, either personally or by
telegram, cable, telecopy, commercial delivery service, telex or
-4-
similar means sent to his business or home address, or three days' notice by
written notice deposited in the mail, shall be given to each director by the
secretary or by the chief executive officer or one of the directors calling the
meeting. A notice or waiver of notice of a meeting of the board of directors
need not specify the purposes of the meeting.
Section 10. Quorum, Action at Meeting, Adjournments. At all meetings
---------------------------------------
of the board a majority of directors then in office, but in no event less than
one third of the entire board, 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 law or by the certificate of
incorporation. For purposes of this section, the term "entire board" shall mean
the number of directors last fixed by the stockholders or directors, as the case
may be, in accordance with law and these by-laws; provided, however, that if
less than all the number so fixed of directors were elected, the "entire board"
shall mean the greatest number of directors so elected to hold office at any one
time pursuant to such authorization. If a quorum shall not be present at any
meeting of the board of directors, a majority of 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 11. Action by 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 be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
Section 12. Telephonic Meetings. Unless otherwise restricted by the
-------------------
certificate of incorporation or these by-laws, members of the board of directors
or of any committee thereof may participate in a meeting of the board of
directors or of any committee, as the case may be, by means of conference
telephone or similar 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 13. Committees. The board of directors may, by resolution
----------
passed by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise
-5-
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; but no such
committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the by-laws of the corporation; and, unless the resolution
designating such committee or the certificate of incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee shall keep regular
minutes of its meetings and make such reports to the board of directors as the
board of directors may request. Except as the board of directors may otherwise
determine, any committee may make rules for the conduct of its business, but
unless otherwise provided by the directors or in such rules, its business shall
be conducted as nearly as possible in the same manner as is provided in these
by-laws for the conduct of its business by the board of directors.
Section 14. Compensation. Unless otherwise restricted by the
------------
certificate of incorporation or these by-laws, the board of directors shall have
the authority to fix from time to time 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 for the performance of their
responsibilities as directors. The directors may be paid a fixed sum for
attendance at each meeting of the board of directors and/or a stated salary as
director. No such payment shall preclude any director from serving the
corporation or its parent or subsidiary corporations in any other capacity and
receiving compensation therefor. The board of directors may also allow
compensation for members of special or standing committees for service on such
committees.
ARTICLE III
OFFICERS
Section 1. Enumeration. The officers of the corporation shall be
-----------
chosen by the board of directors and shall be a president, a secretary and a
treasurer and such other officers with such titles, terms of office and duties
as the board of directors may from time to time determine, including a chairman
of the board, one or more vice-presidents, and one or more assistant secretaries
and assistant treasurers. If authorized by resolution of the board of
directors, the chief executive officer may be empowered to appoint from time to
time assistant secretaries and assistant treasurers. Any number of offices may
-6-
be held by the same person, unless the certificate of incorporation or these by-
laws otherwise provide.
Section 2. Election. The board of directors at its first meeting
--------
after each annual meeting of stockholders shall choose a president, a secretary
and a treasurer. Other officers may be appointed by the board of directors at
such meeting, at any other meeting, or by written consent.
Section 3. Tenure. Each officer of the corporation shall hold office
------
until his or her successor is chosen and qualifies, unless a different term is
specified in the vote choosing or appointing him or her, or until his or her
earlier death, resignation or removal. Any officer elected or appointed by the
board of directors or by the chief executive officer may be removed at any time
by the affirmative vote of a majority of the board of directors or a committee
duly authorized to do so, except that any officer appointed by the chief
executive officer may also be removed at any time by the chief executive
officer. Any vacancy occurring in any office of the corporation may be filled
by the board of directors, at its discretion. Any officer may resign by
delivering his written resignation to the corporation at its principal place of
business or to the chief executive officer or the secretary. Such resignation
shall be effective upon receipt unless it is specified to be effective at some
other time or upon the happening of some other event.
Section 4. President. The president shall be the chief operating
---------
officer of the corporation and shall also be the chief executive officer unless
the board of directors otherwise provides. The president shall, unless the
board of directors provides otherwise in a specific instance or generally,
preside at all meetings of the stockholders and the board of directors, have
general and active management of the business of the corporation and see that
all orders and resolutions of the board of directors are carried into effect.
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 signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
Section 5. Vice-Presidents. In the absence of the president or in
---------------
the event of his inability or refusal to act, the vice-president, or if there be
more than one vice-president, the vice-presidents in the order designated by the
board of directors or the chief executive officer (or in the absence of any
designation, then in the order determined by their tenure in office) 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
-7-
of directors or the chief executive officer may from time to time prescribe.
Section 6. Secretary. The secretary shall have such powers and
---------
perform such duties as are incident to the office of secretary. The secretary
shall maintain a stock ledger and prepare lists of stockholders and their
addresses as required and shall be the custodian of corporate records. 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. 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 from time to time prescribed by the board of
directors or chief executive officer, under whose supervision the secretary
shall be. The secretary shall have custody of the corporate seal of the
corporation and the secretary, 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 the secretary's 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 such
signature.
Section 7. Assistant Secretaries. The assistant secretary, or if
---------------------
there be more than one, the assistant secretaries in the order determined by the
board of directors, the chief executive officer or the secretary (or if there by
no such determination, then in the order determined by their tenure in office),
shall, in the absence of the secretary or in the event of the secretary's
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, the chief executive officer or the secretary may from time
to time prescribe. In the absence of the secretary or any assistant secretary
at any meeting of stockholders or directors, the person presiding at the meeting
shall designate a temporary or acting secretary to keep a record of the meeting.
Section 8. Treasurer. The treasurer shall perform such duties and
---------
shall have such powers as may be assigned by the board of directors or the chief
executive officer. In addition, the treasurer shall perform such duties and
have such powers as are incident to the office of 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,
-8-
taking proper vouchers for such disbursements, and shall render to the chief
executive officer and the board of directors, when the chief executive officer
or board of directors so requires, an account of all transactions as treasurer
and of the financial condition of the corporation.
Section 9. Assistant Treasurers. The assistant treasurer, or if
--------------------
there shall be more than one, the assistant treasurers in the order determined
by the board of directors, the chief executive officer or the treasurer (or if
there by no such determination, then in the order determined by their tenure in
office), 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, the chief executive officer or the treasurer may from time to time
prescribe.
Section 10. Bond. If required by the board of directors, any officer
----
shall give the corporation a bond in such sum and with such surety or sureties
and upon such terms and conditions as shall be satisfactory to the board of
directors, including without limitation a bond for the faithful performance of
the duties of his or her office and for the restoration to the corporation of
all books, papers, vouchers, money and other property of whatever kind in his or
her possession or under his or her control and belonging to the corporation.
ARTICLE IV
NOTICES
Section 1. Delivery. Whenever, under the provisions of law, or of
--------
the certificate of incorporation or these by-laws, written notice is required to
be given by mail, addressed to such director or stockholder, at his or her
address as it appears on the records of the corporation, with postage thereon
prepaid, such notice shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Unless written notice by mail is
required by law, written notice may also be given by telegram, cable, telecopy,
commercial delivery service, telex or similar means, addressed to such director
or stockholder at his or her address as it appears on the records of the
corporation, in which case such notice shall be deemed to be given when
delivered into the control of the persons charged with effecting such
transmission, the transmission charge to be paid by the corporation or the
person sending such notice and not by the addressee. Oral notice or other in-
hand delivery (in person or by telephone) shall be deemed given at the time it
is actually given.
Section 2. Waiver of Notice. Whenever any notice is required to be
----------------
given under the provisions of law or of the certificate of incorporation or of
these by-laws, a waiver
-9-
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE V
INDEMNIFICATION
Section 1. Actions other than by or in the Right of the Corporation.
--------------------------------------------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by that person in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
---------------
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Actions by or in the Right of the Corporation. The
---------------------------------------------
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
-10-
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery of the State of
Delaware or such other court shall deem proper.
Section 3. Success on the Merits. To the extent that any person
---------------------
described in Section 1 or 2 of this Article V has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in said
Sections, or in defense of any claim, issue or matter therein, he or she shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
Section 4. Specific Authorization. Any indemnification under Section
----------------------
1 or 2 of this Article V (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of any person described in said Sections is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in said Sections. Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders of the corporation.
Section 5. Advance Payment. Expenses incurred in defending a civil
---------------
or criminal action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of any person described in said Section to
repay such amount if it shall ultimately be determined that he or she is not
entitled to indemnification by the corporation as authorized in this Article V.
Section 6. Non-Exclusivity. The indemnification and advancement of
---------------
expenses provided by, or granted pursuant to, the other Sections of this Article
V shall not be deemed exclusive of any other rights to which those provided
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office.
Section 7. Insurance. The board of directors may authorize, by a
---------
vote of the majority of the full board, the corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
and incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the corporation would have the power to
-11-
indemnify that person against such liability under the provisions of this
Article V.
Section 8. Continuation of Indemnification and Advancement of
--------------------------------------------------
Expenses. The indemnification and advancement of expenses provided by, or
- --------
granted pursuant to, this Article V shall continue as to a person who has ceased
to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 9. Severability. If any word, clause or provision of this
------------
Article V or any award made hereunder shall for any reason be determined to be
invalid, the remaining provisions hereof shall not otherwise be affected thereby
but shall remain in full force and effect.
Section 10. Intent of Article. The intent of this Article V is to
-----------------
provide for indemnification and advancement of expenses to the fullest extent
permitted by Section 145 of the General Corporation Law of Delaware. To the
extent that such Section or any successor section may be amended or supplemented
from time to time, this Article V shall be amended automatically and construed
so as to permit indemnification and advancement of expenses to the fullest
extent from time to time permitted by law.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates of Stock. 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 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 or her in the corporation. Any or
all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he or she were such officer,
transfer agent or registrar at the date of issue. Certificates may be issued
for partly paid shares and in such case upon the face or back of the
certificates issued to represent any such partly paid shares, the total amount
of the consideration to be paid therefor, and the amount paid thereon shall be
specified.
Section 2. 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.
-12-
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 or her legal representative, to give reasonable evidence of
such loss, theft or destruction, to advertise the same in such manner as it
shall require 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 or the
issuance of such new certificate.
Section 3. Transfer 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, and proper evidence of compliance with other conditions to rightful
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 4. Record Date. In order that the corporation may determine
-----------
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or 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 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 sixty days nor less then ten days before the date
of such meeting, nor more than sixty days prior to any other action to which
such record date relates. 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. If no record date is fixed, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day before the day on
which notice is given, or, if notice is waived, at the close of business on the
day before the day on which the meeting is held. The record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the board of directors is
necessary, shall be the day on which the first written consent is expressed.
The record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the board of directors adopts the
resolution relating to such purpose.
Section 5. 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
-13-
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 Delaware.
ARTICLE VII
CERTAIN TRANSACTIONS
Section 1. Transactions with Interested Parties. No contract or
------------------------------------
transaction between the corporation and one or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction or solely because his or her or
their votes are counted for such purpose, if:
(a) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the board
of directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even thought the disinterested
directors be less than a quorum; or
(b) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of directors,
a committee thereof, or the stockholders.
Section 2. Quorum. Common or interested directors may be counted in
------
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
-14-
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
---------
corporation, if any, may be declared by the board of directors at any regular or
special meeting or by written consent, 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. Reserves. The directors may set apart out of any funds of
--------
the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve.
Section 3. Checks. 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.
Section 4. Fiscal Year. The fiscal year of the corporation shall be
-----------
fixed by resolution of the board of directors.
Section 5. Seal. The board of directors may, by resolution, adopt a
----
corporate seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. The seal may be altered from time to time by the board
of directors.
ARTICLE IX
AMENDMENTS
These by-laws may be altered, amended or repealed or new by-laws may
be adopted by the stockholders or by the board of directors, when such power is
conferred upon the board of directors by the certificate of incorporation, at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors provided,
however, that in the case of a regular or special meeting of stockholders,
notice of such alteration, amendment, repeal or adoption of new by-laws be
contained in the notice of such meeting.
-15-