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EXHIBIT 3.2
BYLAWS OF
HARBOR ACQUISITION CORPORATION
(a Delaware Corporation)
ARTICLE 1
OFFICES
1.1 REGISTERED OFFICE. The registered office of Harbor Acquisition
Corporation (the "Corporation") in the State of Delaware shall be established
and maintained at 1209 Orange Street, in the City of Wilmington, County of New
Castle, Delaware 19801 and The Corporation Trust Company shall be the registered
agent of the corporation in charge thereof.
1.2 OTHER OFFICES. The Corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
of the Corporation (the "Board of Directors") may from time to time determine or
the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. All meetings of the stockholders shall be held at
such time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
2.2 ANNUAL MEETINGS. The annual meeting of stockholders shall be held on
such date and at such time as may be fixed by the Board of Directors and stated
in the notice of the meeting, for the purpose of electing directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these Bylaws (the "Bylaws"). Written notice of an
annual meeting stating the place, date and hour of the meeting, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date of the annual meeting. To be properly
brought before the annual meeting, business must be either (i) specified in the
notice of annual meeting (or any supplement or amendment thereto) given by or at
the direction of the Board of Directors, (ii) otherwise brought before the
annual meeting by or at the direction of the Board of Directors, or (iii)
otherwise properly brought before the annual meeting by a stockholder. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than sixty (60) days
nor more than ninety (90) days prior to the meeting; provided, however, that in
the event that less than seventy (70) days notice or prior public disclosure of
the date of the annual meeting is given or made to stockholders, notice by a
stockholder, to be timely, must be received no later than the close of business
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made, whichever
first occurs. A stockholder's notice to the Secretary shall set forth (a) as to
each matter the stockholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before
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the annual meeting and the reasons for conducting such business at the annual
meeting, and (ii) any material interest of the stockholder in such business, and
(b) as to the stockholder giving the notice (i) the name and record address of
the stockholder and (ii) the class, series and number of shares of capital stock
of the Corporation which are beneficially owned by the stockholder.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the procedures set
forth in this Article II, Section 2. The officer of the Corporation presiding at
an annual meeting shall, if the facts warrant, determine and declare to the
annual meeting that business was not properly brought before the annual meeting
in accordance with the provisions of this Article II, Section 2, and if such
officer should so determine, such officer shall so declare to the annual meeting
and any such business not properly brought before the meeting shall not be
transacted.
2.3 SPECIAL MEETINGS. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), may only be called by a majority of the entire Board of
Directors, or the Chief Executive Officer or the Chairman, and shall be called
by the Secretary at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. Unless otherwise provided by law, written notice of a special
meeting of stockholders, stating the time, place and purpose or purposes
thereof, shall be given to each stockholder entitled to vote at such meeting,
not less than ten (10) or more than sixty (60) days before the date fixed for
the meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
2.4 QUORUM. The holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the holders of a majority of the
votes entitled to be cast by the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) 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 entitled to vote at the meeting.
2.5 ORGANIZATION. The Chairman of the Board of Directors shall act as
chairman of meetings of the stockholders. The Board of Directors may designate
any other officer or director of the Corporation to act as chairman of any
meeting in the absence of the Chairman of the Board of Directors, and the Board
of Directors may further provide for determining who shall act as chairman of
any stockholders meeting in the absence of the Chairman of the Board of
Directors and such designee. The Secretary of the Corporation shall act as
secretary of all meetings of the stockholders, but in the absence of the
Secretary the presiding officer may appoint any other person to act as secretary
of any meeting.
2.6 VOTING. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, any question (other than the election of
directors) brought before any meeting of stockholders shall
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be decided by the vote of the holders of a majority of the stock represented and
entitled to vote thereat. At all meetings of stockholders for the election of
directors, a plurality of the votes cast shall be sufficient to elect. Each
stockholder represented at a meeting of stockholders shall be entitled to cast
one vote for each share of the capital stock entitled to vote thereat held by
such stockholder, unless otherwise provided by the Certificate of Incorporation.
Each stockholder entitled to vote at a meeting of stockholders or to express
consent or dissent to corporate action in writing without a meeting may
authorize any person or persons to act for him by proxy. All proxies shall be
executed in writing and shall be filed with the Secretary of the Corporation not
later than the day on which exercised. No proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
2.7 ACTION OF SHAREHOLDERS WITHOUT MEETING. Unless otherwise provided by
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted, and shall be delivered to the Corporation by delivery to
its registered office in the State of Delaware, 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. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
2.8 VOTING LIST. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place within the city, town or village
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not specified, at the place where said meeting is to be
held. The list shall be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
2.9 STOCK LEDGER. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by Section 2.8 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
2.10 ADJOURNMENT. Any meeting of the stockholders, including one at which
directors are to be elected, may be adjourned for such periods as the presiding
officer of the meeting or the stockholders present in person or by proxy and
entitled to vote shall direct.
2.11 RATIFICATION. Any transaction questioned in any stockholders'
derivative suit, or any other suit to enforce alleged rights of the Corporation
or any of its stockholders, on the ground of lack of
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authority, defective or irregular execution, adverse interest of any director,
officer or stockholder, nondisclosure, miscomputation or the application of
improper principles or practices of accounting may be approved, ratified and
confirmed before or after judgment by the Board of Directors or by the holders
of Common Stock and, if so approved, ratified or confirmed, shall have the same
force and effect as if the questioned transaction had been originally duly
authorized, and said approval, ratification or confirmation shall be binding
upon the Corporation and all of its stockholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned
transaction.
2.12 JUDGES. All votes by ballot at any meeting of stockholders shall be
conducted by two judges appointed for the purpose either by the directors or by
the meeting. The judges shall decide upon the qualifications of voters, count
the votes and declare the result.
ARTICLE 3
DIRECTORS
3.1 POWERS; NUMBER; QUALIFICATIONS. The business and affairs of the
Corporation will be managed by the Board of Directors. The Board of Directors
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute, by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the Stockholders. The
number of directors which constitute the whole Board of Directors will be such
number as determined by resolution of the Board of Directors from time to time;
provided that no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director. As of the date of the initial
adoption of these Bylaws, the number of directors constituting the Board of
Directors shall be two. Directors need not be stockholders of the Corporation.
The Board may be divided into Classes as more fully described in the Certificate
of Incorporation.
3.2 ELECTION; TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. Each
director shall hold office until the next annual meeting of stockholders, or, if
applicable, at the next annual meeting of directors at which his Class stands
for election, or until such director's earlier resignation, removal from office,
death or incapacity. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors or from any other cause may be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director and each director so chosen shall hold
office until the next annual meeting and until such director's successor shall
be duly elected and shall qualify, or until such director's earlier resignation,
removal from office, death or incapacity.
3.3 NOMINATIONS. Nominations of persons for election to the Board of
Directors of the Corporation at a meeting of stockholders of the Corporation may
be made at such meeting by or at the direction of the Board of Directors, by any
committee or persons appointed by the Board of Directors or by any stockholder
of the Corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this Article III, Section
3. Such nominations by any stockholder shall be made pursuant to timely notice
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than sixty (60) days nor more than ninety
(90) days prior to the meeting; provided, however, that in the event that less
than seventy (70) days notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder, to be
timely, must be received no later than the close of business on the
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tenth (10th) day following the day on which such notice of the date of the
meeting was mailed or such public disclosure was made, whichever first occurs.
Such stockholder's notice to the Secretary shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, (a) the name, age, business address and residence address of the
person, (b) the principal occupation or employment of the person, (c) the class
and number of shares of capital stock of the Corporation which are beneficially
owned by the person, and (d) any other information relating to the person that
is required to be disclosed in solicitations for proxies for election of
directors pursuant to the Rules and Regulations of the Securities and Exchange
Commission under Section 14 of the Securities Exchange Act of 1934, as amended,
and (ii) as to the stockholder giving the notice (a) the name and record address
of the stockholder and (b) the class and number of shares of capital stock of
the Corporation which are beneficially owned by the stockholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation. No person shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth herein. The officer of the Corporation
presiding at an annual meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
3.4 MEETINGS. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware. The
first meeting of each newly elected Board of Directors shall be held immediately
after and at the same place as the meeting of the stockholders at which it is
elected and no notice of such meeting shall be necessary to the newly elected
directors in order to legally constitute the meeting, provided a quorum shall be
present; or the Board of Directors may meet at such place and time as is fixed
by the consent in writing of all the directors. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board of Directors. Special meetings of the Board
of Directors may be called by the Chief Executive Officer or a majority of the
entire Board of Directors. Notice thereof stating the place, date and hour of
the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, facsimile,
telegram or e-mail on twenty-four (24) hours notice, or on such shorter notice
as the person or persons calling such meeting may deem necessary or appropriate
in the circumstances.
3.5 QUORUM. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board of
Directors or any committee thereof, a majority of the entire Board of Directors
or such committee, as the case may be, shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors or of any committee thereof, a majority of the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
3.6 ORGANIZATION OF MEETINGS. The Board of Directors shall elect one of
its members to be Chairman of the Board of Directors. The Chairman of the Board
of Directors shall lead the Board of Directors in fulfilling its
responsibilities as set forth in these Bylaws, including its responsibility to
oversee the performance of the Corporation, and shall determine the agenda and
perform all other
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duties and exercise all other powers which are or from time to time may be
delegated to him or her by the Board of Directors. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board of Directors, or
in his or her absence, by the Chief Executive Officer, or in the absence of the
Chairman of the Board of Directors and the Chief Executive Officer by such other
person as the Board of Directors may designate or the members present may
select.
3.7 ACTIONS OF BOARD OF DIRECTORS WITHOUT MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or of such committee, as the case may be, consent thereto in
writing, and the writing or writings are filled with the minutes of proceedings
of the Board of Directors or committee.
3.8 REMOVAL OF DIRECTORS BY STOCKHOLDERS. The entire Board of Directors or
any individual Director may be removed from office with or without cause by a
majority vote of the holders of the outstanding shares then entitled to vote at
an election of directors. In case the Board of Directors or any one or more
Directors be so removed, new Directors may be elected at the same time for the
unexpired portion of the full term of the Director or Directors so removed.
3.9 RESIGNATIONS. Any Director may resign at any time by submitting his
written resignation to the Board of Directors or Secretary of the Corporation.
Such resignation shall take effect at the time of its receipt by the Corporation
unless another time be fixed in the resignation, in which case it shall become
effective at the time so fixed. The acceptance of a resignation shall not be
required to make it effective.
3.10 COMMITTEES. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided by law and in the resolution of the Board of Directors establishing
such committee, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution or amending the Bylaws of the Corporation; and,
unless the resolution expressly so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock
or to adopt a certificate of ownership and merger. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
3.11 COMPENSATION. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed
amount (in cash or other form of consideration) for attendance at each meeting
of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
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receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
3.12 INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if (i) the material facts as to his or their
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 of Directors
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 a quorum; or (ii) the material facts as to
his or their 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 (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
3.13 MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Members of the Board of
Directors or any committee designed by the Board of Directors may participate in
a meeting of the Board of Directors or of a committee of the Board of Directors
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this subsection shall constitute presence
in person at such meeting.
ARTICLE 4
OFFICERS
4.1 GENERAL. The officers of the Corporation shall be elected by the Board
of Directors and may consist of: a Chairman of the Board, Vice Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, President, Secretary
and Treasurer. The Board of Directors, in its discretion, may also elect one or
more Vice Presidents (including Executive Vice Presidents and Senior Vice
Presidents), Assistant Secretaries, Assistant Treasurers, a Controller and such
other officers as in the judgment of the Board of Directors may be necessary or
desirable. Any number of offices may be held by the same person and more than
one person may hold the same office, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws. The officers of the Corporation
need not be stockholders of the Corporation, nor need such officers be directors
of the Corporation.
4.2 ELECTION. The Board of Directors at its first meeting held after each
annual meeting of stockholders shall elect the officers of the Corporation who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their earlier resignation or
removal. Except as otherwise provided in
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this Article IV, any officer elected by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers who are directors of the Corporation
shall be fixed by the Board of Directors.
4.3 VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chief Executive Officer or any Vice President,
and any such officer may, in the name and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy
at any meeting of security holders of any corporation in which the Corporation
may own securities and at any such meeting shall possess and may exercise any
and all rights and powers incident to the ownership of such securities and
which, as the owner thereof, the Corporation might have exercised and possessed
if present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
4.4 CHIEF EXECUTIVE OFFICER. Subject to the provisions of these Bylaws and
to the direction of the Board of Directors, the Chief Executive Officer shall
have ultimate authority for decisions relating to the general management and
control of the affairs and business of the Corporation and shall perform such
other duties and exercise such other powers which are or from time to time may
be delegated to him or her by the Board of Directors or these Bylaws, all in
accordance with basic policies as established by and subject to the oversight of
the Board of Directors.
4.5 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have
general supervision, direction and control of the financial affairs of the
Corporation and shall perform such other duties and exercise such other powers
which are or from time to time may be delegated to him or her by the Board of
Directors or these Bylaws, all in accordance with basic policies as established
by and subject to the oversight of the Board of Directors. In the absence of a
named Treasurer, the Chief Financial Officer shall also have the powers and
duties of the Treasurer as hereinafter set forth and shall be authorized and
empowered to sign as Treasurer in any case where such officer's signature is
required.
4.6 VICE PRESIDENTS. At the request of the Chief Executive Officer or in
the absence of the Chief Executive Officer, or in the event of his or her
inability or refusal to act, the Vice President or the Vice Presidents if there
is more than one (in the order designated by the Board of Directors) shall
perform the duties of the Chief Executive Officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon such office.
Each Vice President shall perform such other duties and have such other powers
as the Board of Directors from time to time may prescribe. If there be no Vice
President, the Board of Directors shall designate the officer of the Corporation
who, in the absence of the Chief Executive Officer or in the event of the
inability or refusal of such officer to act, shall perform the duties of such
office, and when so acting, shall have all the powers of and be subject to all
the restrictions upon such office.
4.7 SECRETARY. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the
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Board of Directors or the Chief Executive Officer, under whose supervision the
Secretary shall be. If the Secretary shall be unable or shall refuse to cause to
be given notice of all meetings of the stockholders and special meetings of the
Board of Directors, then any Assistant Secretary shall perform such actions. If
there be no Assistant Secretary, then the Board of Directors or the Chief
Executive Officer may choose another officer to cause such notice to be given.
The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
4.8 TREASURER. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his transactions
as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
4.9 ASSISTANT SECRETARIES. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of
Directors, the Chief Executive Officer, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
4.10 ASSISTANT TREASURERS. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors, the Chief Executive Officer, any Vice President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Treasurer. If required by the Board of Directors,
an Assistant Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
4.11 CONTROLLER. The Controller shall establish and maintain the
accounting records of the Corporation in accordance with generally accepted
accounting principles applied on a consistent
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basis, maintain proper internal control of the assets of the Corporation and
shall perform such other duties as the Board of Directors, the Chief Executive
Officer or any Vice President of the Corporation may prescribe.
4.12 OTHER OFFICERS. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
4.13 VACANCIES. The Board of Directors shall have the power to fill any
vacancies in any office occurring from whatever reason.
4.14 RESIGNATIONS. Any officer may resign at any time by submitting his
written resignation to the Corporation. Such resignation shall take effect at
the time of its receipt by the Corporation, unless another time be fixed in the
resignation, in which case it shall become effective at the time so fixed. The
acceptance of a resignation shall not be required to make it effective.
4.15 REMOVAL. Subject to the provisions of any employment agreement
approved by the Board of Directors, any officer of the Corporation may be
removed at any time, with or without cause, by the Board of Directors.
ARTICLE 5
CAPITAL STOCK
5.1 FORM OF CERTIFICATES. Every holder of stock in the Corporation shall
be entitled to have a certificate signed, in the name of the Corporation (i) by
the Chief Executive Officer or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
5.2 SIGNATURES. Any or all of the signatures on the certificate may be a
facsimile, including, but not limited to, signatures of officers of the
Corporation and countersignatures of a transfer agent or registrar. In case an
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.
5.3 LOST CERTIFICATES. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
5.4 TRANSFERS. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made
on the books of the Corporation only by the
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person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be
canceled before a new certificate shall be issued. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transactions upon its books, unless the Corporation has a duty to
inquire as to adverse claims with respect to such transfer which has not been
discharged. The Corporation shall have no duty to inquire into adverse claims
with respect to such transfer unless (a) the Corporation has received a written
notification of an adverse claim at a time and in a manner which affords the
Corporation a reasonable opportunity to act on it prior to the issuance of a
new, reissued or re-registered share certificate and the notification identifies
the claimant, the registered owner and the issue of which the share or shares is
a part and provides an address for communications directed to the claimant; or
(b) the Corporation has required and obtained, with respect to a fiduciary, a
copy of a will, trust, indenture, articles of co-partnership, Bylaws or other
controlling instruments, for a purpose other than to obtain appropriate evidence
of the appointment or incumbency of the fiduciary, and such documents indicate,
upon reasonable inspection, the existence of an adverse claim. The Corporation
may discharge any duty of inquiry by any reasonable means, including notifying
an adverse claimant by registered or certified mail at the address furnished by
him or, if there be no such address, at his residence or regular place of
business that the security has been presented for registration of transfer by a
named person, and that the transfer will be registered unless within thirty days
from the date of mailing the notification, either (a) an appropriate restraining
order, injunction or other process issues from a court of competent
jurisdiction; or (b) an indemnity bond, sufficient in the Corporation's judgment
to protect the Corporation and any transfer agent, registrar or other agent of
the Corporation involved from any loss which it or they may suffer by complying
with the adverse claim, is filed with the Corporation.
5.5 FIXING RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record is
adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting, nor more
than ten (10) days after the date upon which the resolution fixing the record
date of action with a meeting is adopted by the Board of Directors, nor more
than sixty (60) days prior to any other action. If no record date is fixed:
(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 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.
(b) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is necessary, shall be the first date on which a
signed written consent is delivered to the Corporation.
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(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 of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
5.6 REGISTERED STOCKHOLDERS. Prior to due presentment for transfer of any
share or shares, the Corporation shall treat the registered owner thereof as the
person exclusively entitled to vote, to receive notifications and to all other
benefits of ownership with respect to such share or shares, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the State of
Delaware.
ARTICLE 6
NOTICES
6.1 FORM OF NOTICE. Notices to directors and stockholders other than
notices to directors of special meetings of the Board of Directors which may be
given by any means stated in Article III, Section 3.4, shall be in writing and
delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the Corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors may also be given by telegram.
6.2 WAIVER OF NOTICE. Whenever any notice is required to be given under
the provisions of law or the Certificate of Incorporation or by these Bylaws of
the Corporation, a written waiver, signed by the person or persons entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular, or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation.
ARTICLE 7
INDEMNIFICATION OF DIRECTORS AND OFFICERS
7.1 The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is serving or had served as a director or officer of the
Corporation or, while serving as such director or officer, is serving or had
served at the request of the Corporation as a director, officer, employee or
agent of, or in any other capacity with respect to, another corporation or a
partnership, joint venture, trust or other entity or enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director or
officer of the Corporation, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by Delaware law, as the same exists
or may hereafter be changed or amended (but, in the case of any such change or
amendment, only to the extent that such change or amendment permits the
Corporation to provide broader indemnification rights than
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permitted prior thereto), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
to be paid in settlement) reasonably incurred or suffered by an indemnitee in
connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a director or officer of the Corporation and shall inure to
the benefit of the indemnitee's heirs, executors and administrators; provided,
however, that except as provided in Section 7.2 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify an
indemnitee in connection with a proceeding (or part thereof) initiated by the
indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
7.2 If a claim under Section 7.1 is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
except in the case of a claim for advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover payments by the Corporation to recover an
advancement of expenses pursuant to terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification hereunder (other than a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that the
indemnitee has not met the applicable standard of conduct set forth in the GCL.
In any suit by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication (as previously defined) that the indemnitee
has not met the applicable standard of conduct set forth in the GCL. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the GCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to the action. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VII or otherwise shall be on the Corporation.
7.3 To the extent that an employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding, or in defense of any claim, issue or matter therein, the Corporation
may, to the extent in writing from time to time by the Corporation's Board of
Directors, grant rights to indemnification, and to be paid by the Corporation
the expenses incurred by him or her in connection therewith in advance of its
final disposition to the fullest extent permitted by the provisions of this
Article VII.
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7.4 Any indemnification under this Article VII (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in such section. Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or
(b) If such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or
(c) By the stockholders.
7.5 Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VII. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
7.6 The indemnification and advancement of expenses provided by, or
granted pursuant to the other sections of this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
7.7 The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VII.
7.8 For purposes of this Article VII, references to "the Corporation"
shall include, in addition to the resulting Corporation, any constituent
Corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer employee or
agent of such constituent Corporation, or is or was serving at the request of
such constituent Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Article with respect to the
resulting or surviving Corporation as he would have with respect to such
constituent Corporation of its separate existence had continued.
7.9 For purposes of this Article VII, references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the
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Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VII.
7.10 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
7.11 No director or officer of the Corporation shall be personally liable
to the Corporation or to any stockholder of the Corporation for monetary damages
for breach of fiduciary duty as a director or officer, provided that this
provision shall not limit the liability of a director or officer (i) for any
breach of the director's or the officer's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware, or (iv) for any transaction from which
the director or officer derived an improper personal benefit.
ARTICLE 8
GENERAL PROVISIONS
8.1 RELIANCE ON BOOKS AND RECORDS. Each Director, each member of any
committee designated by the Board of Directors, and each officer of the
Corporation, shall, in the performance of his duties, be fully protected in
relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
8.2 DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, if any, dividends upon the capital stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the Directors
shall think conducive to the interest of the Corporation, and the Directors may
modify or abolish any such reserve in the manner in which it was created.
8.3 ANNUAL STATEMENT. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the Corporation.
8.4 CHECKS. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other persons as the Board
of Directors may from time to time designate.
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8.5 FISCAL YEAR. The fiscal year of the Corporation shall be as determined
by the Board of Directors. If the Board of Directors shall fail to do so, the
Chief Executive Officer shall fix the fiscal year.
8.6 SEAL. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
8.7 AMENDMENTS. The original or other Bylaws may be adopted, amended or
repealed by the stockholders entitled to vote thereon at any regular or special
meeting or, if the Certificate of Incorporation so provides, by the Board of
Directors. The fact that such power has been so conferred upon the Board of
Directors shall not divest the stockholders of the power nor limit their power
to adopt, amend or repeal Bylaws.
8.8 INTERPRETATION OF BYLAWS. All words, terms and provisions of these
Bylaws shall be interpreted and defined by and in accordance with the General
Corporation Law of the State of Delaware, as amended, and as amended from time
to time hereafter.
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CERTIFICATE OF SECRETARY
I certify that I am the duly elected and acting Secretary of the
Corporation, that these Bylaws have been duly adopted by the Board of Directors,
and that these Bylaws constitute the bylaws of the Corporation.
Dated as of the 20th day of June 2005.
By: s/DAVID A. R. DULLUM
--------------------------------
Secretary
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