DRIFTWOOD ACQUISITION CORPORATION
By-Laws
Article I
The Stockholders
Section 1.1. Annual Meeting. The annual meeting of the
stockholders of Driftwood Acquisition Corporation (the "Corporation") shall
be held on the third Thursday in May of each year at 10:30 a.m. local
time, or at such other date or time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting, for
the election of directors and for the transaction of such other business as
may come before the meeting.
Section 1.2. Special Meetings. A special meeting of the stockholders
may be called at any time by the written resolution or request of
two-thirds or more of the members of the Board of Directors, the
president, or any executive vice president and shall be called upon the
written request of the holders of two-thirds or more in amount, of each
class or series of the capital stock of the Corporation entitled to vote at
such meeting on the matters(s) that are the subject of the proposed
meeting, such written request in each case to specify the purpose or
purposes for which such meeting shall be called, and with respect to
stockholder proposals, shall further comply with the requirements of this
Article.
Section 1.3. Notice of Meetings. Written notice of each meeting of
stockholders, whether annual or special, stating the date, hour and place
where it is to be held, shall be served either personally or by mail, not
less than fifteen nor more than sixty days before the meeting, upon each
stockholder of record entitled to vote at such meeting, and to any other
stockholder to whom the giving of notice may be required by law. Notice
of a special meeting shall also state the purpose or purposes for which
the meeting is called and shall indicate that it is being issued by, or
at the direction of, the person or persons calling the meeting. If, at
any meeting,action is proposed to be taken that would, if taken, entitle
stockholders to receive payment for their stock, the notice of such
meeting shall include a statement of that purpose and to that effect.
If mailed, notice shall be deemed to be delivered when deposited in the
United States mail or with any private express mail service, postage or
delivery fee prepaid, and shall be directed to each such stockholder at
his address, as it appears on the records of the stockholders of the
Corporation, unless he shall have previously filed with the secretary of
the Corporation a written request that notices intended for him be mailed
to some other address, in which case, it shall be mailed to the address
designated in such request.
Section 1.4. Fixing Date of Record. (a) 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, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than sixty
nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of, or to vote at, a meeting of
stockholders shall be at the close of business on the day next preceding
the day on which notice is given, or if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held.
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.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting
(to the extent that such action by written consent is permitted by law,
the Certificate of Incorporation or these By-Laws), the Board of Directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors,
the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office
in its state of incorporation, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of Directors
is required by law, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts
the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders 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 a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date
shall be not more than sixty days prior to such action. If no record date
is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto.
Section 1.5. Inspectors. At each meeting of the stockholders, the
polls shall be opened and closed and the proxies and ballots shall be
received and be taken in charge. All questions touching on the
qualification of voters and the validity of proxies and the acceptance or
rejection of votes, shall be decided by one or more inspectors. Such
inspectors shall be appointed by the Board of Directors before or at the
meeting, or, if no such appointment shall have been made, then by the
presiding officer at the meeting. If for any reason any of the inspectors
previously appointed shall fail to attend or refuse or be unable to serve,
inspectors in place of any so failing to attend or refusing or unable to
serve shall be appointed in like manner.
Section 1.6. Quorum. At any meeting of the stockholders, the
holders of a majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum of the stockholders for all
purposes, unless the representation of a larger number shall be required
by law, and, in that case, the representation of the number so required
shall constitute a quorum.
If the holders of the amount of stock necessary to constitute a
quorum shall fail to attend in person or by proxy at the time and place
fixed in accordance with these By-Laws for an annual or special meeting,
a majority in interest of the stockholders present in person or by proxy
may adjourn, from time to time, without notice other than by announcement
at the meeting, until holders of the amount of stock requisite to
constitute a quorum shall attend. At any such adjourned meeting at which
a quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 1.7. Business. The chairman of the Board, if any, the
president, or in his absence the vice-chairman, if any, or an executive
vice president, in the order named, shall call meetings of the stockholders
to order, and shall act as chairman of such meeting; provided, however,
that the Board of Directors or executive committee may appoint any
stockholder to act as chairman of any meeting in the absence of the
chairman of the Board. The secretary of the Corporation shall act as
secretary at all meetings of the stockholders, but in the absence of the
secretary at any meeting of the stockholders, the presiding officer may
appoint any person to act as secretary of the meeting.
Section 1.8. Stockholder Proposals. No proposal by a stockholder
shall be presented for vote at a special or annual meeting of stockholders
unless such stockholder shall, not later than the close of business on the
fifth day following the date on which notice of the meeting is first given
to stockholders, provide the Board of Directors or the secretary of the
Corporation with written notice of intention to present a proposal for
action at the forthcoming meeting of stockholders, which notice shall
include the name and address of such stockholder, the number of voting
securities that he holds of record and that he holds beneficially, the
text of the proposal to be presented to the meeting and a statement in
support of the proposal.
Any stockholder who was a stockholder of record on the applicable
record date may make any other proposal at an annual meeting or special
meeting of stockholders and the same may be discussed and considered,
but unless stated in writing and filed with the Board of Directors or the
secretary prior to the date set forth herein above, such proposal shall be
laid over for action at an adjourned, special, or annual meeting of the
stockholders taking place sixty days or more thereafter. This provision
shall not prevent the consideration and approval or disapproval at the
annual meeting of reports of officers, directors, and committees, but in
connection with such reports, no new business proposed by a stockholder,
qua stockholder, shall be acted upon at such annual meeting unless stated
and filed as herein provided.
Notwithstanding any other provision of these By-Laws, the
Corporation shall be under no obligation to include any stockholder
proposal in its proxy statement materials or otherwise present any such
proposal to stockholders at a special or annual meeting of stockholders
if the Board of Directors reasonably believes the proponents thereof have
not complied with Sections 13 or 14 of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder; nor shall the
Corporation be required to include any stockholder proposal not required
to be included in its proxy materials to stockholders in accordance with
any such section, rule or regulation.
Section 1.9. Proxies. At all meetings of stockholders, a stockholder
entitled to vote may vote either in person or by proxy executed in writing
by the stockholder or by his duly authorized attorney-in-fact. Such proxy
shall be filed with the secretary before or at the time of the meeting. No
proxy shall be valid after eleven months from the date of its execution,
unless otherwise provided in the proxy.
Section 1.10. Voting by Ballot. The votes for directors, and upon
the demand of any stockholder or when required by law, the votes upon any
question before the meeting, shall be by ballot.
Section 1.11. Voting Lists. 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 of stock 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 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 1.12. Place of Meeting. The Board of Directors may
designate any place, either within or without the state of incorporation,
as the place of meeting for any annual meeting or any special meeting
called by the Board of Directors. If no designation is made or if a
special meeting is otherwise called, the place of meeting shall be the
principal office of the Corporation.
Section 1.13. Voting of Stock of Certain Holders. Shares of capital
stock of the Corporation standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent, or proxy as the
by-laws of such corporation may prescribe, or in the absence of such
provision, as the board of directors of such corporation may determine.
Shares of capital stock of the Corporation standing in the name of a
deceased person, a minor ward or an incompetent person may be voted by
his administrator, executor, court-appointed guardian or conservator,
either in person or by proxy, without a transfer of such stock into the
name of such administrator, executor, court-appointed guardian or
conservator. Shares of capital stock of the Corporation standing in the
name of a trustee may be voted by him, either in person or by proxy.
Shares of capital stock of the Corporation standing in the name of a
receiver may be voted, either in person or by proxy, by such receiver, and
stock held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority to do so
is contained in any appropriate order of the court by which such receiver
was appointed.
A stockholder whose stock is pledged shall be entitled to vote such
stock, either in person or by proxy, until the stock has been transferred
into the name of the pledgee, and thereafter the pledgee shall be entitled
to vote, either in person or by proxy, the stock so transferred.
Shares of its own capital stock belonging to this Corporation shall
not be voted, directly or indirectly, at any meeting and shall not be
counted in determining the total number of outstanding stock at any given
time, but shares of its own stock held by it in a fiduciary capacity may
be voted and shall be counted in determining the total number of
outstanding stock at any given time.
Article II
Board of Directors
Section 2.1. General Powers. The business, affairs, and the
property of the Corporation shall be managed and controlled by the Board
of Directors (the "Board"), and, except as otherwise expressly provided by
law, the Certificate of Incorporation or these By-Laws, all of the powers
of the Corporation shall be vested in the Board.
Section 2.2. Number of Directors. The number of directors which
shall constitute the whole Board shall be not fewer than one nor more
than five. Within the limits above specified, the number of directors shall
be determined by the Board of Directors pursuant to a resolution adopted
by a majority of the directors then in office.
Section 2.3. Election, Term and Removal. Directors shall be elected
at the annual meeting of stockholders to succeed those directors whose
terms have expired. Each director shall hold office for the term for which
elected and until his or her successor shall be elected and qualified.
Directors need not be stockholders. A director may be removed from
office at a meeting expressly called for that purpose by the vote of not
less than a majority of the outstanding capital stock entitled to vote at
an election of directors.
Section 2.4. Vacancies. Vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of directors,
may be filled by the affirmative vote of a majority of the remaining
directors then in office, though less than a quorum; except that vacancies
resulting from removal from office by a vote of the stockholders may be
filled by the stockholders at the same meeting at which such removal
occurs provided that the holders of not less than a majority of the
outstanding capital stock of the Corporation (assessed upon the basis of
votes and not on the basis of number of shares) entitled to vote for the
election of directors, voting together as a single class, shall vote for
each replacement director. All directors elected to fill vacancies shall
hold office for a term expiring at the time of the next annual meeting of
stockholders and upon election and qualification of his successor. No
decrease in the number of directors constituting the Board of Directors
shall shorten the term of an incumbent director.
Section 2.5. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the president or to the
secretary of the Corporation. The resignation of any director shall take
effect at the time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 2.6. Place of Meetings, etc. The Board of Directors may
hold its meetings, and may have an office and keep the books of the
Corporation (except as otherwise may be provided for by law), in such
place or places in or outside the state of incorporation as the Board
from time to time may determine.
Section 2.7. Regular Meetings. Regular meetings of the Board of
Directors shall be held as soon as practicable after adjournment of the
annual meeting of stockholders at such time and place as the Board of
Directors may fix. No notice shall be required for any such regular
meeting of the Board.
Section 2.8. Special Meetings. Special meetings of the Board of
Directors shall be held at places and times fixed by resolution of the
Board of Directors, or upon call of the chairman of the Board, if any, or
vice-chairman of the Board, if any, the president, an executive vice
president or two-thirds of the directors then in office.
The secretary or officer performing the secretary's duties shall give
not less than twenty-four hours' notice by letter, telegraph or telephone
(or in person) of all special meetings of the Board of Directors, provided
that notice need not given of the annual meeting or of regular meetings held
at times and places fixed by resolution of the Board. Meetings may be held
at any time without notice if all of the directors are present, or if those
not present waive notice in writing either before or after the meeting. The
notice of meetings of the Board need not state the purpose of the meeting.
Section 2.9. Participation by Conference Telephone. Members of the
Board of Directors of the Corporation, or any committee thereof, may
participate in a regular or special or any other meeting of the Board or
committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence in person
at such meeting.
Section 2.10. Action by Written Consent. 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 prior or subsequent
to such action all the members of the Board or such committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board or committee.
Section 2.11. Quorum. A majority of the total number of directors
then in office shall constitute a quorum for the transaction of business;
but if at any meeting of the Board there be less than a quorum present, a
majority of those present may adjourn the meeting from time to time.
Section 2.12. Business. Business shall be transacted at meetings of
the Board of Directors in such order as the Board may determine. At all
meetings of the Board of Directors, the chairman of the Board, if any, the
president, or in his absence the vice-chairman, if any, or an executive
vice president, in the order named, shall preside.
Section 2.13. Interest of Directors in Contracts. (a) 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
the Corporation's 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 which authorizes the contract or
transaction, or solely because his or their votes are counted for such
purpose, if:
(1) The material facts as to his 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 though the disinterested directors be less than quorum; or
(2) The material facts as to his 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
(3) 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 of the Board of Directors or
the stockholders.
(b) 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.
Section 2.14. Compensation of Directors. Each director of the
Corporation who is not a salaried officer or employee of the Corporation,
or of a subsidiary of the Corporation, shall receive such allowances for
serving as a director and such fees for attendance at meetings of the
Board of Directors or the executive committee or any other committee
appointed by the Board as the Board may from time to time determine.
Section 2.15. Loans to Officers or Employees. The Board of
Directors may lend money to, guarantee any obligation of, or otherwise
assist, any officer or other employee of the Corporation or of any
subsidiary, whether or not such officer or employee is also a director of
the Corporation, whenever, in the judgment of the directors, such loan,
guarantee, or assistance may reasonably be expected to benefit the
Corporation; provided, however, that any such loan, guarantee, or other
assistance given to an officer or employee who is also a director of the
Corporation must be authorized by a majority of the entire Board of
Directors. Any such loan, guarantee, or other assistance may be made
with or without interest and may be unsecured or secured in such manner
as the Board of Directors shall approve, including, but not limited to, a
pledge of shares of the Corporation, and may be made upon such other
terms and conditions as the Board of Directors may determine.
Section 2.16. Nomination. Subject to the rights of holders of any
class or series of stock having a preference over the common stock as to
dividends or upon liquidation, nominations for the election of directors
may be made by the Board of Directors or by any stockholder entitled to
vote in the election of directors generally. However, any stockholder
entitled to vote in the election of directors generally may nominate one or
more persons for election as directors at a meeting only if written notice
of such stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States mail, postage
prepaid, to the secretary of the Corporation not later than (i) with respect
to an election to be held at an annual meeting of stockholders, the close of
business on the last day of the eighth month after the immediately
preceding annual meeting of stockholders, and (ii) with respect to an
election to be held at a special meeting of stockholders for the election of
directors, the close of business on the fifth day following the date on
which notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be
nominated; (b) a representation that the stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such
other information regarding each nominee proposed by such stockholder
as would be required to be included in a proxy statement filed pursuant to
the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of
Directors, and; (e) the consent of each nominee to serve as a director of
the Corporation if so elected. The presiding officer at the meeting may
refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Article III
Committees
Section 3.1. Committees. The Board of Directors, by resolution
adopted by a majority of the number of directors then fixed by these By-
Laws or resolution thereto, may establish such standing or special
committees of the Board as it may deem advisable, and the members,
terms, and authority of such committees shall be set forth in the
resolutions establishing such committee.
Section 3.2. Executive Committee Number and Term of Office. The
Board of Directors may, at any meeting, by majority vote of the Board of
Directors, elect from the directors an executive committee. The executive
committee shall consist of such number of members as may be fixed from
time to time by resolution of the Board of Directors. The Board of
Directors may designate a chairman of the committee who shall preside at
all meetings thereof, and the committee shall designate a member thereof
to preside in the absence of the chairman.
Section 3.3. Executive Committee Powers. The executive committee
may, while the Board of Directors is not in session, exercise all or any
of the powers of the Board of Directors in all cases in which specific
directions shall not have been given by the Board of Directors; except
that the executive committee shall not have the power or authority of the
Board of Directors to (i) amend the Certificate of Incorporation or the
By-Laws of the Corporation, (ii) fill vacancies on the Board of Directors,
(iii) adopt an agreement or certification of ownership, merger or
consolidation, (iv) recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets, or a dissolution of the Corporation or a revocation of a
dissolution, (v) declare a dividend, or (vi) authorize the issuance of
stock.
Section 3.4. Executive Committee Meetings. Regular and special
meetings of the executive committee may be called and held subject to
the same requirements with respect to time, place and notice as are
specified in these By-Laws for regular and special meetings of the Board
of Directors. Special meetings of the executive committee may be called
by any member thereof. Unless otherwise indicated in the notice thereof,
any and all business may be transacted at a special or regular meeting of
the executive meeting if a quorum is present. At any meeting at which
every member of the executive committee shall be present, in person or
by telephone, even though without any notice, any business may be
transacted. All action by the executive committee shall be reported to
the Board of Directors at its meeting next succeeding such action.
The executive committee shall fix its own rules of procedure, and
shall meet where and as provided by such rules or by resolution of the
Board of Directors, but in every case the presence of a majority of the
total number of members of the executive committee shall be necessary to
constitute a quorum. In every case, the affirmative vote of a quorum shall
be necessary for the adoption of any resolution.
Section 3.5. Executive Committee Vacancies. The Board of Directors,
by majority vote of the Board of Directors then in office, shall fill
vacancies in the executive committee by election from the directors.
Article IV
The Officers
Section 4.1. Number and Term of Office. The officers of the
Corporation shall consist of, as the Board of Directors may determine
and appoint from time to time, a chief executive officer, a president,
one or more executive vice-presidents, a secretary, a treasurer, a
controller,and/or such other officers as may from time to time be
elected or appointed by the Board of Directors, including such
additional vice-presidents with such designations, if any, as may be
determined by the Board of Directors and such assistant secretaries
and assistant treasurers. In addition, the Board of Directors may
elect a chairman of the Board and may also elect a vice-chairman as
officers of the Corporation. Any two or more offices may be held by
the same person. In its discretion, the Board of Directors may leave
unfilled any office except as may be required by law.
The officers of the Corporation shall be elected or appointed from
time to time by the Board of Directors. Each officer shall hold office
until his successor shall have been duly elected or appointed or until
his death or until he shall resign or shall have been removed by the
Board of Directors.
Each of the salaried officers of the Corporation shall devote his
entire time, skill and energy to the business of the Corporation, unless
the contrary is expressly consented to by the Board of Directors or the
executive committee.
Section 4.2. Removal. Any officer may be removed by the Board of
Directors whenever, in its judgment, the best interests of the
Corporation would be served thereby.
Section 4.3. The Chairman of the Board. The chairman of the Board,
if any, shall preside at all meetings of stockholders and of the Board of
Directors and shall have such other authority and perform such other
duties as are prescribed by law, by these By-Laws and by the Board of
Directors. The Board of Directors may designate the chairman of the
Board as chief executive officer, in which case he shall have such
authority and perform such duties as are prescribed by these By-Laws
and the Board of Directors for the chief executive officer.
Section 4.4. The Vice-Chairman. The vice-chairman, if any, shall
have such authority and perform such other duties as are prescribed by
these By-Laws and by the Board of Directors. In the absence or inability
to act of the chairman of the Board and the president, he shall preside at
the meetings of the stockholders and of the Board of Directors and shall
have and exercise all of the powers and duties of the chairman of the
Board. The Board of Directors may designate the vice-chairman as chief
executive officer, in which case he shall have such authority and perform
such duties as are prescribed by these By-Laws and the Board of
Directors for the chief executive officer.
Section 4.5. The President. The president shall have such authority
and perform such duties as are prescribed by law, by these By-Laws, by
the Board of Directors and by the chief executive officer (if the president
is not the chief executive officer). The president, if there is no chairman
of the Board, or in the absence or the inability to act of the chairman of
the Board, shall preside at all meetings of stockholders and of the Board
of Directors. Unless the Board of Directors designates the chairman of
the Board or the vice-chairman as chief executive officer, the president
shall be the chief executive officer, in which case he shall have such
authority and perform such duties as are prescribed by these By-Laws and
the Board of Directors for the chief executive officer.
Section 4.6. The Chief Executive Officer. Unless the Board of
Directors designates the chairman of the Board or the vice-chairman as
chief executive officer, the president shall be the chief executive officer.
The chief executive officer of the Corporation shall have, subject to the
supervision and direction of the Board of Directors, general supervision
of the business, property and affairs of the Corporation, including the
power to appoint and discharge agents and employees, and the powers
vested in him by the Board of Directors, by law or by these By-Laws or
which usually attach or pertain to such office.
Section 4.7. The Executive Vice-Presidents. In the absence of the
chairman of the Board, if any, the president and the vice-chairman, if
any, or in the event of their inability or refusal to act, the executive
vice-president (or in the event there is more than one executive
vice-president, the executive vice-presidents in the order designated, or
in the absence of any designation, then in the order of their election)
shall perform the duties of the chairman of the Board, of the president
and of the vice-chairman, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the chairman of the Board,
the president and the vice-chairman. Any executive vice-president may sign,
with the secretary or an authorized assistant secretary, certificates for
stock of the Corporation and shall perform such other duties as from time
to time may be assigned to him by the chairman of the Board, the
president, the vice-chairman, the Board of Directors or these By-Laws.
Section 4.8. The Vice-Presidents. The vice-presidents, if any, shall
perform such duties as may be assigned to them from time to time by the
chairman of the Board, the president, the vice-chairman, the Board of
Directors, or these By-Laws.
Section 4.9. The Treasurer. Subject to the direction of chief
executive officer and the Board of Directors, the treasurer shall have
charge and custody of all the funds and securities of the Corporation;
when necessary or proper he shall endorse for collection, or cause to be
endorsed, on behalf of the Corporation, checks, notes and other obligations,
and shall cause the deposit of the same to the credit of the Corporation
in such bank or banks or depositary as the Board of Directors may designate
or as the Board of Directors by resolution may authorize; he shall sign all
receipts and vouchers for payments made to the Corporation other than
routine receipts and vouchers, the signing of which he may delegate; he
shall sign all checks made by the Corporation (provided, however, that the
Board of Directors may authorize and prescribe by resolution the manner in
which checks drawn on banks or depositories shall be signed, including the
use of facsimile signatures, and the manner in which officers, agents or
employees shall be authorized to sign); unless otherwise provided by
resolution of the Board of Directors, he shall sign with an officer-
director all bills of exchange and promissory notes of the Corporation;
whenever required by the Board of Directors, he shall render a statement
of his cash account; he shall enter regularly full and accurate account
of the Corporation in books of the Corporation to be kept by him for that
purpose; he shall, at all reasonable times, exhibit his books and accounts
to any director of the Corporation upon application at his office during
business hours; and he shall perform all acts incident to the position of
treasurer. If required by the Board of Directors, the treasurer shall
give a bond for the faithful discharge of his duties in such sum and with
such sure ties as the Board of Directors may require.
Section 4.10. The Secretary. The secretary shall keep the minutes
of all meetings of the Board of Directors, the minutes of all meetings of
the stockholders and (unless otherwise directed by the Board of Directors)
the minutes of all committees, in books provided for that purpose; he shall
attend to the giving and serving of all notices of the Corporation; he may
sign with an officer-director or any other duly authorized person, in the
name of the Corporation, all contracts authorized by the Board of
Directors or by the executive committee, and, when so ordered by the
Board of Directors or the executive committee, he shall affix the seal of
the Corporation thereto; he may sign with the president or an executive
vice-president all certificates of shares of the capital stock; he shall
have charge of the certificate books, transfer books and stock ledgers, and
such other books and papers as the Board of Directors or the executive
committee may direct, all of which shall, at all reasonable times, be open
to the examination of any director, upon application at the secretary's
office during business hours; and he shall in general perform all the duties
incident to the office of the secretary, subject to the control of the chief
executive officer and the Board of Directors.
Section 4.11. The Controller. The controller shall be the chief
accounting officer of the Corporation. Subject to the supervision of the
Board of Directors, the chief executive officer and the treasurer, the
controller shall provide for and maintain adequate records of all assets,
liabilities and transactions of the Corporation, shall see that accurate
audits of the Corporation's affairs are currently and adequately made and
shall perform such other duties as from time to time may be assigned to
him.
Section 4.12. The Assistant Treasurers and Assistant Secretaries.
The assistant treasurers shall respectively, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in such
sums and with such sureties as the Board of Directors may determine.
The assistant secretaries as thereunto authorized by the Board of Directors
may sign with the chairman of the Board, the president, the vice-chairman
or an executive vice-president, certificates for stock of the Corporation,
the issue of which shall have been authorized by a resolution of the Board
of Directors. The assistant treasurers and assistant secretaries, in general,
shall perform such duties as shall be assigned to them by the treasurer or
the secretary, respectively, or chief executive officer, the Board of
Directors, or these By-Laws.
Section 4.13. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is
also a director of the Corporation.
Section 4.14. Voting upon stocks. Unless otherwise ordered by the
Board of Directors or by the executive committee, any officer, director or
any person or persons appointed in writing by any of them, shall have full
power and authority in behalf of the Corporation to attend and to act and
to vote at any meetings of stockholders of any corporation in which the
Corporation may hold stock, and at any such meeting shall possess and
may exercise any and all the rights and powers incident to the ownership
of such stock, and which, as the owner thereof, the Corporation might
have possessed and exercised if present. The Board of Directors may
confer like powers upon any other person or persons.
Article V
Contracts and Loans
Section 5.1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
Section 5.2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Article VI
Certificates for Stock and Their Transfer
Section 6.1. Certificates for Stock. Certificates representing stock
of the Corporation shall be in such form as may be determined by the Board
of Directors. Such certificates shall be signed by the chairman of the
Board, the president, the vice-chairman or an executive vice-president
and/or by the secretary or an authorized assistant secretary and shall be
sealed with the seal of the Corporation. The seal may be a facsimile.
If a stock certificate is countersigned (i) by a transfer agent other than
the Corporation or its employee, or (ii) by a registrar other than the
Corporation or its employee, any other signature on the certificate may be
a facsimile. In the event that any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue. All certificates for stock shall
be consecutively numbered or otherwise identified. The name of the person
to whom the shares of stock represented thereby are issued, with the number
of shares of stock and date of issue, shall be entered on the books of the
Corporation. All certificates surrendered to the Corporation for transfer
shall be canceled and no new certificates shall be issued until the former
certificate for a like number of shares of stock shall have been surrendered
and canceled,except that, in the event of a lost, destroyed or mutilated
certificate, a new one may be issued therefor upon such terms and indemnity
to the Corporation as the Board of Directors may prescribe.
Section 6.2. Transfers of Stock. Transfers of stock of the
Corporation shall be made only on the books of the Corporation by the
holder of record thereof or by his legal representative, who shall
furnish proper evidence of authority to transfer, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
secretary of the Corporation, and on surrender for cancellation of the
certificate for such stock. The person in whose name stock stands on the
books of the Corporation shall be deemed the owner thereof for all purposes
as regards the Corporation.
Article VII
Fiscal Year
Section 7.1. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of January in each year and end on the last day of
December in each year.
Article VIII
Seal
Section 8.1. Seal. The Board of Directors shall approve a
corporate seal which shall be in the form of a circle and shall have
inscribed thereon the name of the Corporation.
Article IX
Waiver of Notice
Section 9.1. Waiver of Notice. Whenever any notice is required
to be given under the provisions of these By-Laws or under the provisions
of the Certificate of Incorporation or under the provisions of the
corporation law of the state of incorporation, waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of
such notice. Attendance of any person at a meeting for which any notice is
required to be given under the provisions of these By-Laws, the Certificate
of Incorporation or the corporation law of the state of incorporation shall
constitute a waiver of notice of such meeting except when the person
attends for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
Article X
Amendments
Section 10.1. Amendments. These By-Laws may be altered, amended
or repealed and new By-Laws may be adopted at any meeting of the
Board of Directors of the Corporation by the affirmative vote of a
majority of the members of the Board, or by the affirmative vote of a
majority of the outstanding capital stock of the Corporation (assessed
upon the basis of votes and not on the basis of number of shares) entitled
to vote generally in the election of directors, voting together as a single
class.
Article XI
Indemnification
Section 11.1. Indemnification. The Corporation shall indemnify its
officers, directors, employees and agents to the fullest extent permitted
by the General Corporation Law of Delaware, as amended from time to time.
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