EXHIBIT 3.10
AMENDED B Y L A W S
OF
MOONEY AIRPLANE COMPANY, INC.,
A Delaware Corporation
Prepared by:
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
600 West Broadway, Suite 2600
San Diego, California 92101
Telephone: (619) 236-1414
As revised July 22, 2002.
Bylaws for the regulation, except as otherwise provided by statute or
its Certificate of Incorporation ("Certificate"), of
MOONEY AIRPLANE COMPANY, INC.
(a Delaware corporation)
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders, commencing
with the year 2003, shall be held on or before the fifteenth day of August of
each year at such date and time as shall be designated from time to time by the
Board of Directors ("Board") and stated in the notice of the meeting. At such
meeting, directors shall be elected, reports of the affairs of the corporation
shall be considered, and any other business may be transacted which is within
the powers of the stockholders.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes whatsoever, may be called at any time by the Board, the
Chairman of the Board, the President, or by the holders of shares entitled to
cast not less than 10% of the votes at the meeting or by such other persons as
may be provided in the Certificate or in these Bylaws.
SECTION 3. NOTICE. Written notice of each meeting shall be given to
each stockholder entitled to vote, either personally or by mail or other means
of written communication, charges prepaid, addressed to such stockholder at his
address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice. If no such address appears or is given,
notice shall be deemed to have been given to him if sent by mail or other means
of written communication addressed to the place where the principal executive
office of the corporation is situated, or by publication of notice at least once
in some newspaper of general circulation in the county in which said office is
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located. All such notices shall be sent to each stockholder entitled thereto not
less than 10 (or if sent by third-class mail, 30) nor more than 60 days before
such meeting. Such notice shall specify the place, the date and the hour of such
meeting.
In the case of a special meeting, the notice shall state the
general nature of business to be transacted and no other business shall be
transacted at such meeting.
In the case of an annual meeting, the notice shall state those
matters which the Board, at the time of the mailing of the notice, intends to
present for action by the stockholders. However, any proper matter may be
presented at the meeting for action but action on the following matters shall be
valid only if the general nature of the proposal so approved was stated in the
notice of the meeting or in a written notice, unless the matter was unanimously
approved by those entitled to vote:
(a) the approval of a contract or other transaction
between the corporation and one or more of its
directors or with any corporation, firm or
association in which one or more of its directors has
a material financial interest;
(b) an amendment to the Certificate;
(c) a reorganization as defined in the Delaware
Corporation Law Annotated;
(d) the voluntary winding up and dissolution of the
corporation; or
(e) a plan of distribution under the Delaware Corporation
Law Annotated in respect of a corporation in the
process of winding up.
The notice of any meeting at which directors are to be elected
shall include the names of the nominees intended at the time of the notice to be
presented by the Board for election.
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The notice shall state such other matters, if any, as may be
expressly required by statute.
SECTION 4. ADJOURNED MEETING AND NOTICE THEREOF. When a stockholders'
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting, the corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than 45 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 5. QUORUM. Unless otherwise provided in the Certificate, the
presence in person or by proxy of the persons entitled to vote a majority of the
voting shares at any meeting shall constitute a quorum for the transaction of
business. The stockholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum. In the absence of a
quorum, any meeting of stockholders may be adjourned from time to time by the
vote of a majority of the shares represented either in person or by proxy, but
no other business may be transacted, except as provided above.
SECTION 6. CONSENT OF ABSENTEES. The transactions of any meeting of
stockholders, however called and noticed and wherever held are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting, or an approval of the minutes thereof. All such waivers, consents and
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approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided in the
Certificate, any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares 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; provided, however,
that:
(a) unless the consents of all stockholders entitled to
vote have been solicited in writing, notice of any
stockholder approval:
(1) of a contract or other transaction between
the corporation and one or more of its
directors or with any corporation, firm or
association in which one or more of its
directors has a material financial interest;
(2) of an indemnity pursuant toss.145 of the
Delaware Corporation Law Annotated;
(3) of a reorganization (as defined inss.303 of
the Delaware Corporation Law Annotated)
required to be approved by the stockholders;
or
(4) of a plan of distribution under the Delaware
Corporation Law Annotated in respect of a
corporation in the process of winding up,
which approval was obtained without a
meeting by less than unanimous written
consent, shall be given at least 10 days
before the consummation of the action
authorized by such approval; and
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(b) prompt notice shall be given of the taking of any
other corporate action approved by stockholders
without a meeting by less than unanimous written
consent, to those stockholders entitled to vote who
have not consented in writing. Notice of such
approval shall be given in the same manner as
required by Article I, Section 3 of these Bylaws.
Any stockholder giving a written consent, or the stockholder's
proxy holder or proxy holders, or a transferee of the shares, or a personal
representative of the stockholder, or their respective proxy holder or proxy
holders, may revoke the consent by a writing received by the corporation prior
to the time that written consents of the number of shares required to authorize
the proposed action have been filed with the Secretary of the corporation, but
may not do so thereafter. Such revocation is effective upon its receipt by the
Secretary of the corporation.
Notwithstanding the above provisions, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors.
SECTION 8. RECORD DATES. For purposes of determining the stockholders
entitled to notice of any meeting or to vote or entitled to exercise any other
rights, the Board may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days prior to the date of such meeting nor more than 60
days prior to any other action. If no record date is fixed by the Board:
(a) 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 business day
next preceding the day on which notice is given or,
if notice is waived, at the close of business on the
business day next preceding the day on which the
meeting is held;
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(b) the record date for determining stockholders entitled
to give consent to corporate action in writing
without a meeting, when no prior action by the Board
is necessary, shall be the day on which the first
written consent is given; and
(c) the record date for determining stockholders for any
other purpose shall be at the close of business on
the day on which the Board adopts the resolution
relating thereto, or the 60th day prior to the date
of such other action, whichever is later. 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 unless
the Board fixes a new record date for the adjourned
meeting, but the Board shall fix a new record date if
the meeting is adjourned for more than 45 days.
SECTION 9. PROXIES. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy continues in full force and effect
until revoked as specified in ss.215 of the Delaware Corporation Law Annotated
or unless it states that it is irrevocable. A proxy which states that it is
irrevocable is irrevocable for the period specified therein when it is held by a
person specified in the Delaware Corporation Law Annotated..
SECTION 10. VOTING; CUMULATIVE VOTING AND NOTICE THEREOF. Votes on any
matter may be VIVA VOCE but shall be by ballot upon demand made by a stockholder
at any election and before the voting begins. No stockholder shall be entitled
to cumulate votes for election of directors (i.e., cast for any candidate for
election as directors a number of votes greater than the number of votes which
such stockholder normally is entitled to cast) unless such candidate or
candidates' names have been placed in nomination prior to the voting and the
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stockholder has given notice at the meeting prior to the voting of the
stockholder's intention to cumulate the stockholder's votes. If any one
stockholder has given such notice, all stockholders may cumulate their votes for
candidates in nomination. If cumulative voting is proper, every stockholder
entitled to vote at any election of directors may cumulate such stockholder's
votes and give one candidate a number of votes equal to the number of directors
to be elected multiplied by the number of votes to which the stockholder's
shares are normally entitled, or distribute the stockholder's votes on the same
principle among as many candidates as the stockholder thinks fit. In any
election of directors, the candidates receiving the highest number of
affirmative votes of the shares entitled to be voted for them up to the number
of directors to be elected by such shares are elected; votes against the
director and votes withheld shall have no legal effect.
Except for election of directors, provided above, votes on
other substantive and procedural matters shall be taken on the basis of one vote
for each shares represented at the meeting.
Fractional shares shall not be entitled to any voting rights.
SECTION 11. CHAIRMAN OF MEETING. The Board may select any person to
preside as Chairman of any meeting of stockholders, and if such person shall be
absent from the meeting, or fail or be unable to preside, the Board may name any
other person in substitution therefore as Chairman. In the absence of an express
selection by the Board of a Chairman or substitute therefore, the Chairman of
the Board shall preside as Chairman. If the Chairman of the Board shall be
absent, fail or be unable to preside, the President shall preside. If the
President shall be absent, fail or be unable to preside the Vice President or
Vice Presidents in order of their rank as fixed by the Board, the Secretary, or
the Chief Financial Officer, shall preside as Chairman, in that order. The
Chairman of the meeting shall designate a secretary for such meeting, who shall
take and keep or cause to be taken and kept minutes of the proceedings thereof.
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The conduct of all stockholders' meetings shall at all times
be within the discretion of the Chairman of the meeting and shall be conducted
under such rules as he may prescribe. The Chairman shall have the right and
power to adjourn any meeting at any time, without a vote of the shares present
in person or represented by proxy, if the Chairman shall determine such action
to be in the best interests of the corporation and its stockholders.
SECTION 12. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act at the meeting and any adjournment thereof. If
inspectors of election are not so appointed, or if any such persons fail to
appear or refuse to act, the Chairman of any such meeting may, and on the
request of any stockholder or his proxy shall, make such appointment at the
meeting. The number of inspectors shall be either one or three. If appointed at
a meeting on the request of one or more stockholders or proxies, the majority of
shares present in person or by proxy shall determine whether one or three
inspectors are to be appointed.
The inspectors of election shall determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, the authenticity, validity and effect of
proxies, receive votes, ballots or consents, hear and determine all challenges
and questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close, determine
the result and do such acts as may be proper to conduct the election or vote
with fairness to all stockholders.
If there are three inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all.
ARTICLE II
DIRECTORS
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SECTION 1. POWERS. Subject to any limitations in the Certificate or
these Bylaws and to any provision of the Delaware General Corporation Law
relating to action required to be approved by the stockholders or by the
outstanding shares, or by less than a majority vote of a class or series of
preferred shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board. The Board may delegate the management of the day-to-day operation of the
business of the corporation to a management company or other person provided
that the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised under the ultimate direction of the Board.
SECTION 2. NUMBER. The number of directors which shall constitute the
whole board shall be not less than three (3) nor more than five (5). The
authorized number of directors shall be three (3). The exact number of directors
shall be fixed, from time to time, by a vote of a majority of the directors then
holding office or by a majority of the outstanding voting shares of the
corporation.
SECTION 3. ELECTION AND TERM OF OFFICE. The directors shall be elected
at each annual meeting of stockholders, and the directors may be elected at any
special meeting of stockholders held for that purpose. Each director, including
a director elected to fill a vacancy, shall hold office until the expiration of
the term for which elected and until a successor has been elected and qualified.
SECTION 4. ORGANIZATION MEETING. Immediately following each annual
meeting of stockholders, the Board shall hold a regular meeting for the purpose
of organization, election of officers, and the transaction of other business.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board shall be
held at such times and places within or without the state as may be designated
in the notice of the meeting or which are designated by resolution of the Board.
In the absence of designation of place, regular meetings shall be held at the
principal office of the corporation.
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SECTION 6. SPECIAL MEETINGS. Special meetings of the Board for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President, or by any Vice President or the Secretary or any two directors.
Special meetings of the Board may be held at such times and places within or
without the state as may be designated in the notice of the meeting or which are
designated by resolution of the Board.
SECTION 7. NOTICE OF MEETINGS. When notice of a meeting of the Board is
required, at least four days notice by mail or 24 hours notice delivered by
email, personally or by telephone or telegraph shall be given to each director.
All Jewish holidays and the Jewish Sabbath shall be excluded from the notice
period and the setting of Board meetings during those times is prohibited. Such
notice need not specify the purpose of the meeting. Notice of a meeting need not
be given to any director who signs a waiver of notice or consent to holding the
meeting or an approval of the minutes thereof, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. All such waivers, consents
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
SECTION 8. PARTICIPATION BY TELEPHONE. Members of the Board may
participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section
constitutes presence in person at such meeting.
SECTION 9. QUORUM. A majority of the authorized number of directors
constitutes a quorum of the Board for the transaction of business. A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by
at least a majority of the required quorum for such meeting. A majority of the
directors present, whether or not a quorum is present, may adjourn any meeting
to another time and place.
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SECTION 10. VOTING. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is present is the
act of the Board, subject to Section 9 of this Article and to:
(a) the provisions of the Delaware Corporation Law
Annotated regarding votes in respect of a contract or
other transaction between the corporation and one or
more of its directors or with any corporation, firm
or association in which one or more of its directors
has a material financial interest, and
(b) Corporation Law regarding votes in respect of
indemnification of agents of the corporation who are
members of the Board.
SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors.
SECTION 12. RESIGNATION. Any director may resign effective upon giving
written notice to the Chairman of the Board, the President, the Secretary or the
Board of the corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
SECTION 13. VACANCIES. Except for a vacancy created by the removal of a
director, vacancies on the Board may be filled by the unanimous written consent
of the directors then in office, the affirmative vote of a majority of the
directors then in office at a meeting held pursuant to notice or waivers of
notice complying with Section 142, or by a sole remaining director. Vacancies
occurring in the Board by reason of the removal of directors may be filled only
by approval of the stockholders. The stockholders may elect a director at any
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time to fill any vacancy not filled by the directors. Any such election by
written consent other than to fill a vacancy created by removal requires the
consent of a majority of the outstanding shares entitled to vote.
No reduction of the authorized number of directors shall have
the effect of removing any director prior to the expiration of his term of
office.
SECTION 14. ADJOURNMENT. A majority of the directors present, whether
or not a quorum is present, may adjourn any meeting to another time and place.
If the meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given prior to the time of the adjourned meeting
to the directors who were not present at the time of the adjournment. Such
notice need not comply with the time in which notice must be given prior to a
meeting as required by Section 7 of Article II of the Bylaws, but should be
given as far in advance as is reasonably practicable under all the circumstances
existing at the time of adjournment.
SECTION 15. VISITORS. No person other than a director may attend any
meeting of the Board without the consent of a majority of the directors present;
provided, however, that a representative of legal counsel for the corporation
and a representative of the independent certified public accountant for the
corporation may attend any such meeting upon the invitation of any director.
SECTION 16. FEES AND COMPENSATION. Directors and members of committees
may receive such compensation for their services and such reimbursement for
expenses as may be fixed or determined by resolution of the Board.
SECTION 17. COMMITTEES. The Board may, by resolution adopted by a
majority of the authorized number of directors, designate one or more
committees, each consisting of two or more directors, to serve at the pleasure
of the Board. The Board may designate one or more directors as alternate members
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of any committee, who may replace any absent member at any meeting of the
committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized directors. Any such committee,
to the extent provided in the resolution of the Board or in the Bylaws, shall
have all the authority of the Board, except with respect to:
(a) the approval of any action for which the General
Corporation Law also requires stockholders' approval
or approval of the outstanding shares;
(b) the filling of vacancies on the Board or in any
committee;
(c) the fixing of compensation of the directors for
serving on the Board or on any committee;
(d) the amendment or repeal of Bylaws or the adoption of
new Bylaws;
(e) the amendment or repeal of any resolution of the
Board which by its express terms is not so amendable
or repealable;
(f) a distribution to the stockholders of the corporation
(as defined in the Delaware Corporation Law
Annotated), except at a rate, in the periodic amount
or within a price range set forth in the Certificate
or determined by the Board; and
(g) the appointment of other committees of the Board or
the members thereof.
SECTION 18. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, the
provisions of this Article, Sections 5 (Regular Meetings), 6 (Special Meetings),
7 (Notice of Meetings), 8 (Participation by Telephone), 9 (Quorum), 10 (Voting),
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11 (Action Without Meeting), and 14 (Adjournment), with such changes in the
context of those Bylaws as are necessary to substitute the committee and its
members for the Board and its members, except that the time of regular meetings
of committees may be determined by resolution of the Board as well as the
committee, special meetings of committees may also be called by resolutions of
the Board and notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the
committee. The Board may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a
Chairman of the Board or a President, or both, a Secretary and a Chief Financial
Officer. The corporation may also have, at the discretion of the Board, one or
more Vice Presidents, one or more Assistant Secretaries and Assistant Financial
Officers, and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article. One person may hold two or more offices
except that the Chief Executive Officer and Chief Financial Officer cannot be
the same person.
SECTION 2. ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by the Board, and each shall
hold office until resignation or removal or other disqualification to serve, or
the election of a successor.
SECTION 3. SUBORDINATE OFFICERS. The Board, the Chairman and the
President shall each have the power to appoint such assistant vice presidents,
assistant secretaries and assistant treasurers or financial officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as the appointing officer or
the Board may from time to time determine. In the case of subordinate officers
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appointed by the Chairman or the President, such appointment shall be reported
to the Board at its next meeting, but the failure to so report shall not affect
the validity of the appointment. The Board may remove any subordinate officer at
any time.
SECTION 4. REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by action of the Board duly taken, or, except in case of
an officer chosen by the Board, by any officer upon whom such power of removal
may be conferred by the Board.
Any officer may resign at any time by giving written notice to
the corporation, to the attention of the Secretary. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 5. VACANCIES. A vacancy in any office shall be filled in the
manner prescribed in the Bylaws for regular appointments to such office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board, cause minutes thereof to be taken, and exercise and perform such other
powers and duties as may be from time to time assigned to him by the Board or
prescribed by the Bylaws. In the event the corporation shall not have an elected
President, the Chairman of the Board shall also have the authority and perform
the duties as provided for the President in the following Section of this
Article.
SECTION 7. PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board to the Chairman of the Board, if there is such an
officer, the President shall be the Chief Executive Officer of the corporation,
subject to the control of the Board, shall have general supervision, direction
and control of the business and affairs of the corporation. In the absence of
the Chairman of the Board, he shall preside at all meetings of the Board. He
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shall be ex officio a member of all the standing committees, including the
Executive Committee, if any, and shall have the general powers and duties of
management usually vested in the office of President of a corporation, and shall
have such other powers and duties as may be prescribed by the Board or the
Bylaws.
SECTION 8. EXECUTIVE VICE PRESIDENT. In the absence or disability of
the President, the Executive Vice President, if there shall be such officers
designated by the Board, shall in order of their rank as fixed by the Board,
shall perform all the duties of the President, or, if there be none, the
Chairman of the Board, and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the President or Chairman of the Board.
The Vice President shall have such other powers and perform such other duties as
from time to time may be prescribed for him by the Board or the Bylaws.
SECTION 9. VICE PRESIDENT. In the absence or disability of the
President and the Executive Vice President, the Vice Presidents in order of
their rank as fixed by the Board or, if not ranked, the Vice President
designated by the Board, shall perform all the duties of the President, or, if
there be none, the Chairman of the Board, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President or
Chairman of the Board. The Vice Presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for each of
them by the Board or the Bylaws.
SECTION 10. SECRETARY. The Secretary shall keep or cause to be kept at
the principal executive office a book of minutes of all meetings and consents to
action without a meeting of directors, committees and stockholders, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at directors'
and committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.
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The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's transfer agent
or registrar, a record of its stockholders showing the names of the stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
the meetings of the stockholders and of the Board required by the Bylaws or by
law to be given.
The Secretary shall keep the seal of the corporation in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board or by the Bylaws.
SECTION 11. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation,
including changes in financial position, accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, surplus and shares. Any surplus
shall be classified according to source and shown in a separate account.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board. He shall disburse the funds of
the corporation as may be ordered by the Board or by any officer having
authority therefore, shall render to the President and directors, whenever they
request it, an account of all of his transactions and of the financial condition
of the corporation, and shall have such other powers and perform such other
duties as may be prescribed by the Board or the Bylaws.
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ARTICLE IV
MISCELLANEOUS
SECTION 1. LOANS TO OR GUARANTIES FOR THE BENEFIT OF OFFICERS OR
DIRECTORS; LOANS UPON THE SECURITY OF SHARES OF THE CORPORATION.
(a) Except as expressly provided in subsection (b)
hereof, the corporation shall not make any loan of
money or property to or guarantee the obligation of;
(1) any director or officer of the corporation
or of its parent, or
(2) any person upon the security of shares of
the corporation or of its parent, unless the
loan or guaranty is otherwise adequately
secured, or unless approved by the vote of
the holders of a majority of the shares of
all classes, regardless of limitations or
restrictions on voting rights, other than
shares held by the benefited director,
officer or stockholder.
(b) The corporation may lend money to, or guarantee any
obligation of any officer or other employee of the
corporation or of any subsidiary, including any
officer or employee who is also a director, pursuant
to an employee benefit plan (including, without
limitation, any stock purchase or stock option plan)
available to executives or other employees, whenever
the Board determines that such loan or guaranty may
reasonably be expected to benefit the corporation. If
such plan includes officers or directors, it shall be
approved by the stockholders after disclosure of the
right under such plan to include officers or
directors there under. A loan or guaranty under this
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subdivision may be with or without interest and may
be unsecured or secured in such manner as the Board
shall approve, including, without limitation, a
pledge of shares of the corporation. The corporation
may advance money to a director or officer of the
corporation or of its parent or any subsidiary for
expenses reasonably anticipated to be incurred in the
performance of the duties of such director or
officer, provided that in the absence of such advance
such director or officer would be entitled to be
reimbursed for such expenses by such corporation, its
parent or any subsidiary.
SECTION 2. RECORD DATE AND CLOSING STOCK BOOKS. When a record date is
fixed, only stockholders of record on that date are entitled to notice of and to
vote at the meeting or to receive a dividend, distribution, or allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the record date.
The Board may close the books of the corporation against
transfers of shares during the whole or any part of a period not more than 60
days prior to the date of a stockholders' meeting, the date when the right to
any dividend, distribution, or allotment of rights vests, or the effective date
of any change, conversion or exchange of shares.
SECTION 3. INSPECTION OF CORPORATE RECORDS. The record of stockholders,
the accounting books and records of the corporation, and minutes of proceedings
of the stockholders, the Board and committees of the Board shall be open to
inspection upon the written demand of any stockholder or holder of a voting
trust certificate, at any time during usual business hours for a purpose
reasonably related to his interests as a stockholder or as the holder of a
voting trust certificate. Such inspection may be made in person or by an agent
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or attorney, and shall include the right to copy and make extracts. Demand of
inspection shall be made in writing upon the corporation to the attention of the
Secretary.
A stockholder or stockholders holding at least five percent in
the aggregate of the outstanding voting shares of the corporation or who hold at
least one percent of such voting shares and have filed a Schedule 14-B with the
United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have an absolute right to access to a list of
stockholders as provided in the General Corporation Law.
SECTION 4. EXECUTION OF CONTRACTS. Any contract or other instrument in
writing entered into by the corporation, when signed by the Chairman of the
Board, the President or any Vice President and the Secretary, any Assistant
Secretary, the Chief Financial Officer or any Assistant Financial Officer is not
invalidated as to the corporation by any lack of authority of the signing
officers in the absence of actual knowledge on the part of the other party to
the contract or other instrument that the signing officers had no authority to
execute the same. Contracts or other instruments in writing made in the name of
the corporation which are authorized or ratified by the Board, or are done
within the scope of authority, actual or apparent, conferred by the Board or
within the agency power of the officer executing it, bind the corporation.
SECTION 5. SHARE CERTIFICATES. A certificate or certificates for shares
of the capital stock of the corporation shall be issued to each stockholder when
any such shares are fully paid. Every stockholder in the corporation shall be
entitled to have a certificate signed in the name of the corporation by the
Chairman of the Board or the President or a Vice President and by the Chief
Financial Officer or an Assistant Financial Officer or the Secretary or any
Assistant Secretary, certifying the number of shares and the class or series of
shares owned by the stockholders. Any or all of the signatures on the
certificate may be facsimile.
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The corporation may issue the whole or any part of its shares
as partly paid and subject to call for the remainder of the consideration to be
paid therefore. On the certificates issued to represent any partly paid shares
or, for uncertificated securities, on the initial transaction statement for such
partly paid shares, the total amount of the consideration to be paid therefore
and the amount paid thereon shall be stated.
No new certificate for shares shall be issued in lieu of an
old certificate unless the latter is surrendered and cancelled at the same time;
provided, however, that a new certificate may be issued without the surrender
and cancellation of the old certificate if:
(a) the old certificate is lost, stolen or destroyed;
(b) the request for the issuance of the new certificate
is made within a reasonable time after the owner of
the old certificate has notice of its loss,
destruction, or theft;
(c) the request for the issuance of a new certificate is
made prior to the receipt of notice by the
corporation that the old certificate has been
acquired by a bona fide purchaser; and
(d) the owner satisfies any other reasonable requirements
imposed by the corporation including, at the election
of the Board, the filing of sufficient indemnity bond
or undertaking with the corporation or its transfer
agent. In the event of the issuance of a new
certificate, the rights and liabilities of the
corporation, and of the holders of the old and new
certificates, shall be governed by the provisions of
Delaware commercial law.
SECTION 6. REPRESENTATION OF SECURITIES OF OTHERS. Unless otherwise
determined by the Board or the Executive Committee, the President, or any other
officer of the corporation designated in writing by the President, is authorized
to vote, represent and exercise on behalf of the corporation all rights incident
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to any and all securities of any other person or entity standing in the name of
the corporation. The authority herein granted may be exercised either in person,
or by proxy.
SECTION 7. INSPECTION OF BYLAWS. The corporation shall keep in its
principal executive or business office in this state, the original or a copy of
its Bylaws as amended to date, which shall be open to inspection by the
stockholders at all reasonable times during office hours.
SECTION 8. EMPLOYEE STOCK PURCHASE AND OPTION PLANS. The corporation
may adopt and carry out a stock purchase plan or agreement or stock option plan
or agreement providing for the issue and sale for such consideration as may be
fixed of its unissued shares, or of issued shares acquired or to be acquired, to
one or more of the employees or directors of the corporation or of a subsidiary
or parent thereof or to a trustee on their behalf and for the payment for such
shares in installments or at one time, and may provide for aiding any such
persons in paying for such shares by compensation for services rendered,
promissory notes or otherwise.
A stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefore, the reservation of title until full payment
therefore, the effect of the termination of employment, an option or obligation
on the part of the corporation to repurchase the shares upon termination of
employment, subject to the provisions of the Delaware Corporation Law Annotated,
restrictions upon transfer of the shares and the time limits of and termination
of the plan.
SECTION 9. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the Delaware Corporation Law Annotated shall govern the
construction of these Bylaws. Without limiting the generality of the foregoing,
the masculine gender includes the feminine and neuter, the singular number
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includes the plural and the plural number includes the singular, and the term
"person" includes a corporation as well as a natural person.
SECTION 10. INDEMNIFICATION OF CORPORATE AGENTS. The corporation is
authorized to provide indemnification of its agents (as defined in Section 145
of the Delaware Corporation Law Annotated) to the fullest extent permissible
under Delaware law through bylaw provisions, agreements with its agents, vote of
the stockholders or disinterested directors, or otherwise, in excess of the
indemnification otherwise permitted by Section 145 of the Delaware Corporation
Law Annotated. This corporation is further authorized to provide insurance for
agents as set forth in Section 145 of the Delaware Corporation Law Annotated.
SECTION 11. LIABILITY OF DIRECTORS. The liability of the directors of
the corporation for monetary damages shall be eliminated to the fullest extent
permissible under Delaware law. Any repeal or modification of the foregoing
provisions of Sections 11 and 12 hereof by the stockholders of this corporation
shall not adversely affect any right or protection of an agent of this
corporation existing at the time of such repeal or modification.
SECTION 12. FINANCIAL STATEMENTS. A copy of any annual financial
statement and any income statement of the corporation for each quarterly period
of each fiscal year, and any accompanying balance sheet of the corporation as of
the end of each such period, that has been prepared by the corporation shall be
kept on file in the principal executive office of the corporation for 12 months
and each such statement shall be exhibited at all reasonable times to any
stockholder demanding an examination of any such statement or a copy shall be
mailed to any such stockholder.
A stockholder or stockholders holding at least five percent of
the outstanding shares of any class of stock of the corporation may make a
written request to the corporation for an income statement of the corporation
for the three-month, six-month or nine-month period of the then current fiscal
year ended more than 30 days prior to the date of the request, and a balance
sheet of the corporation as of the end of such period; the Chief Financial
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Officer shall cause such statements to be prepared, if not already prepared, and
shall deliver personally or mail such statement or statements to the person
making the request within 30 days after the receipt of such request. If the
corporation has not sent to the stockholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to such
stockholder or stockholders within 30 days after such request.
The corporation also shall, upon the written request of any
stockholder, mail to the stockholder a copy of the last annual, semi-annual or
quarterly income statement which it has prepared and a balance sheet as of the
end of such period.
The quarterly income statements and balance sheets referred to
in this Section shall be accompanied by the report thereon, if any, of any
independent accountants engaged by the corporation or the certificate of an
authorized officer of the corporation that such financial statements were
prepared without audit from the books and records of the corporation.
SECTION 13. ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation
shall file, during the period commencing in April and ending in March of each
year, with the Secretary of State of the State of Delaware, on the prescribed
form, a statement setting forth the number of vacancies on the Board, if any,
the names and complete business or residence addresses of all incumbent
directors, the Chief Executive Officer, Secretary and Chief Financial Officer,
the street address of its principal executive office or principal business
office in this state and the general type of business constituting the principal
business activity of the corporation, together with a designation of the agent
of the corporation for the purpose of service of process, all in compliance with
Section 131 of the Delaware Corporation Law Annotated.
SECTION 14. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
drafts or other orders for payment of money, notes or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time to
time, shall be determined by resolution of the Board.
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ARTICLE V
AMENDMENTS TO BYLAWS
SECTION 1. POWER OF STOCKHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the vote or written consent of stockholders
entitled to exercise a majority of the voting power of the corporation.
SECTION 2. POWER OF DIRECTORS. Subject to the right of stockholders as
provided in Section 1 of this Article to adopt, amend or repeal Bylaws, Bylaws
may be adopted, amended or repealed by the Board provided, however, that after
the issuance of shares a Bylaw specifying or changing a fixed number of
directors or the maximum or minimum number or changing from a fixed to a
variable Board or vice versa may only be adopted by the vote or written consent
of stockholders entitled to exercise a majority of the voting power of the
corporation.
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