EXHIBIT 3.2
BY-LAWS
OF
H.E.C. INVESTMENTS, INC.,
A Delaware Corporation
TABLE OF CONTENTS
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ARTICLE I - CORPORATE OFFICES . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Notice of Stockholders Meetings . . . . . . . . . . . . . . . . 3
2.5 Manner of Giving Notice; Affidavit of Notice . . . . . . . . . 3
2.6 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7 Adjourned Meeting; Notice . . . . . . . . . . . . . . . . . . . 3
2.8 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . 4
2.10 Stockholder Action by Written Consent Without a Meeting . . . . 5
2.11 Record Date for Stockholder Notice; Voting; Giving Consents . . 5
2.12 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.13 List of Stockholders Entitled to Vote . . . . . . . . . . . . . 7
2.14 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . 7
2.15 Inspectors of Election . . . . . . . . . . . . . . . . . . . . 7
2.16 Inspectors of Election and Procedures for Counting
Written Consents . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2 Number of Directors . . . . . . . . . . . . . . . . . . . . . . 10
3.3 Election, Qualification and Term of Office of Directors . . . . 10
3.4 Resignation and Vacancies . . . . . . . . . . . . . . . . . . . 11
3.5 Place of Meetings; Meetings by Telephone . . . . . . . . . . . 12
3.6 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 12
3.7 Special Meetings; Notice . . . . . . . . . . . . . . . . . . . 12
3.8 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . 13
3.10 Adjourned Meeting Notice . . . . . . . . . . . . . . . . . . . 13
3.11 Board Action by Written Consent Without a Meeting . . . . . . . 14
3.12 Fees and Compensation of Directors . . . . . . . . . . . . . . 14
3.13 Approval of Loans to Officers . . . . . . . . . . . . . . . . . 14
3.14 Removal of Directors . . . . . . . . . . . . . . . . . . . . . 14
3.15 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . 15
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TABLE OF CONTENTS
(continued)
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ARTICLE IV - COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.1 Committees of Directors . . . . . . . . . . . . . . . . . . . . 15
4.2 Committee Minutes . . . . . . . . . . . . . . . . . . . . . . . 16
4.3 Meetings and Action of Committees . . . . . . . . . . . . . . . 16
ARTICLE V - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.1 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 Election of Officers . . . . . . . . . . . . . . . . . . . . . . 17
5.3 Subordinate Officers . . . . . . . . . . . . . . . . . . . . . . 17
5.4 Removal and Resignation of Officers . . . . . . . . . . . . . . 17
5.5 Vacancies in Offices . . . . . . . . . . . . . . . . . . . . . . 17
5.6 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 17
5.7 President . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.8 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 18
5.9 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.10 Chief Financial Officer . . . . . . . . . . . . . . . . . . . . 19
5.11 Assistant Secretary . . . . . . . . . . . . . . . . . . . . . . 19
5.12 Authority and Duties of Officers . . . . . . . . . . . . . . . . 19
5.13 Representation of Shares of Other Corporations . . . . . . . . . 20
ARTICLE VI - INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 Indemnification of Directors and Officers . . . . . . . . . . . 20
6.2 Indemnification of Others . . . . . . . . . . . . . . . . . . . 20
6.3 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII - RECORDS AND REPORTS . . . . . . . . . . . . . . . . . . . . . 21
7.1 Maintenance and Inspection of Records . . . . . . . . . . . . . 21
7.2 Inspection by Directors . . . . . . . . . . . . . . . . . . . . 22
7.3 Annual Statement to Stockholders . . . . . . . . . . . . . . . . 22
ARTICLE VIII - GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . 22
8.1 Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.2 Execution of Corporate Contracts and Instruments . . . . . . . . 22
8.3 Stock Certificates; Partly Paid Shares . . . . . . . . . . . . . 23
8.4 Special Designation on Certificates . . . . . . . . . . . . . . 23
8.5 Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 24
8.6 Construction; Definitions . . . . . . . . . . . . . . . . . . . 24
8.7 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.8 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.9 Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.10 Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . 25
8.11 Stock Transfer Agreements . . . . . . . . . . . . . . . . . . . 25
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TABLE OF CONTENTS
(continued)
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8.12 Registered Stockholders . . . . . . . . . . . . . . . . . . . . 25
8.13 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE X - DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE XI - CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . 27
11.1 Appointment of a Custodian in Certain Cases . . . . . . . . . . 27
11.2 Duties of Custodian . . . . . . . . . . . . . . . . . . . . . . 27
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BY-LAWS
OF
H.E.C. INVESTMENTS, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be in the City of Dover,
County of Kent, State of Delaware. The name of the registered agent of the
corporation at such location is Incorporating Services, Ltd.
1.2 OTHER OFFICES
The board of directors may at any time establish other offices at any
place or places where the corporation is qualified to do business.
ARTICLE II
STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside
the State of Delaware, designated by the board of directors. In the absence
of any such designation, stockholders' meetings shall be held at the
registered office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held, each year, on a date
and at a time designated by the board of directors. In the absence of any
said designation, the annual meeting of stockholders shall be held on the
second Tuesday of August in each year at 3:00 p.m. at the principal executive
office of the Corporation. At each annual meeting, directors shall be
elected, and any other proper business may be transacted.
To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the board of directors, (b) otherwise properly brought
before the meeting by or at the
direction of the board of directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before the
meeting by a stockholder, the secretary of the corporation must have received
notice in writing from the stockholder not less than thirty (30) days nor
more than sixty (60) days prior to the meeting; provided, however, that if
less than thirty-five (35) days' notice of the meeting is given to
stockholders, such notice shall have been received by the secretary not later
than the close of business on the seventh (7th) day following the day on
which the notice of meeting was mailed. Such written notice to the secretary
shall set forth, as to each matter the stockholder proposes to bring before
the annual meeting: (i) a brief description of the business, (ii) the name
and address, as they appear on the corporation's books, of the stockholder
proposing such business, (iii) the number of shares of stock of the
corporation beneficially owned by such stockholder and (iv) any material
interest of such stockholder in such business. Notwithstanding any provision
in the by-laws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section
2.2.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the
board of directors, by the chairman of the board, by the president or by one
or more holders holding shares representing in the aggregate the right to
cast not less than ten percent (10%) of the votes at the meeting.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be transacted
and shall be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the chairman of the board, the
president, the chief executive officer or the secretary of the corporation.
No business may be transacted at such special meeting otherwise than
specified in such notice. The officer receiving the request shall cause
notice to be given to the stockholders entitled to vote, in accordance with
the provisions of Sections 2.4 and 2.5, that a meeting will be held at the
time requested by the person or persons who called the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days after the
receipt of the request, the person or persons requesting the meeting may give
the notice. Nothing contained in this paragraph of this Section 2.3 shall be
construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the board of directors may be held.
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2.4 NOTICE OF STOCKHOLDERS MEETINGS
All notices of meetings of stockholders shall be in writing and shall be
sent or otherwise given in accordance with Section 2.5 of these by-laws not
less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or required by law (meaning, here and hereinafter,
as required from time to time by the General Corporation Law of Delaware or
the certificate of incorporation of the corporation). The notice shall
specify the place, date, and hour of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
An affidavit of the secretary or an assistant secretary or of the transfer
agent of the corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
2.6 QUORUM
At any meeting of the stockholders, the holders of a majority, present
in person or by proxy, of all of the shares of the stock entitled to vote at
the meeting shall constitute a quorum for all purposes, unless or except to
the extent that the presence of a larger number may be required by law.
Where a separate vote by a class or classes is required, a majority, present
in person or by proxy, of the shares of such class or classes entitled to
take action with respect to that vote on that matter shall constitute a
quorum. If a quorum shall fail to attend any meeting, the chairman of the
meeting may adjourn the meeting to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, those present at such adjourned meeting
shall constitute a quorum (but in no event shall a quorum consist of less
than one-third of the shares entitled to vote at the meeting), and all
matters shall be determined by a majority of the votes cast at such meeting,
except as otherwise required by law.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these
by-laws otherwise require, notice need not be given of the
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adjourned meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken. At the adjourned meeting the corporation
may transact any business that might have been transacted at the original
meeting. 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 of record
entitled to vote at the meeting.
2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of these
by-laws, subject to the provisions of Sections 217 and 218 of the General
Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and other voting
agreements).
Each stockholder shall have one (1) vote for every share of stock
entitled and to vote that is registered in his or her name on the record date
for the meeting (as determined in accordance with Section 2.11 of these
by-laws), except as otherwise provided herein or required by law.
Every stock vote shall be taken by ballots, each of which shall state
the name of the stockholder or proxyholder voting and such other information
as may be required under the procedure established for the meeting. All
elections shall be determined by a plurality of the votes cast, and except as
otherwise required by law or provided herein, all other matters shall be
determined by a majority of the votes cast affirmatively or negatively.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these by-laws, a written waiver thereof, signed by the person 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 need be specified in any
written waiver of notice unless so required by the certificate of
incorporation or these by-laws.
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2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice,
and without a vote if a consent or consents 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
at its registered office in Delaware, its principal place of business, or to
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery to the
corporation's registered office shall be made 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. If the action that is consented to is such as
would have required the filing of a certificate under any section of the
General Corporation Law of Delaware if such action had been voted on by
stockholders at a meeting thereof, then the certificate filed under such
section shall state, in lieu of any statement required by such section
concerning any vote of stockholders, that written notice and written consent
have been given as provided in Section 228 of the General Corporation Law of
Delaware.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, or 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 shall not
be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
(i) 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.
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(ii) The record date for determining stockholders entitled to receive
payment of any dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or 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.
In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall neither precede nor
be more than ten (10) days after the date upon which such resolution is
adopted by the board of directors. Any stockholder of record seeking to have
the stockholders authorize or take action by written consent shall, by
written notice to the secretary, request the board of directors to fix a
record date. The board of directors shall promptly, but in all events within
ten (10) days after the date on which such notice is received, adopt a
resolution fixing the record date.
If the board of directors has not fixed a record date within such time,
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 in the manner prescribed in the first paragraph
of Section 2.10 of these by-laws. If the board of directors has not fixed a
record date within such time 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 date on which the board of directors adopts the
resolution taking such prior action.
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.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by a written proxy,
filed in accordance with the procedure established for the meeting or taking
of action in writing, but no such proxy shall be voted or acted upon after
three (3) years from its date, unless the proxy provides for a longer period.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission created pursuant to this Section 2.12 may be
substituted or used in lieu of the original writing or trans-
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mission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of
the entire original writing or transmission. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 212 (e) of the General Corporation Law of Delaware.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
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 and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder
for any purpose germane to the meeting during ordinary business hours for a
period of at least ten (10) 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. Such list shall presumptively
determine the identity of the stockholders entitled to vote at the meeting
and the number of shares held by each of them.
2.14 CONDUCT OF BUSINESS
Such person as the board of directors may have designated or, in the
absence of such a person, any executive officer of the corporation, shall
call to order any meeting of the stockholders and act as chairman of the
meeting. In the absence of the secretary of the corporation, the secretary
of the meeting shall be such person as the chairman appoints. The chairman
of any meeting of stockholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting
and the conduct of discussion as seem to him in order. The date and time of
the opening and closing of the polls for each matter upon which the
stockholders will vote at the meeting shall be announced at the meeting.
2.15 INSPECTORS OF ELECTION
The corporation may, and to the extent required by law, shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act
at the meeting and make a written report thereof. The corporation may
designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders,
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the person presiding at the meeting may, and to the extent required by law,
shall, appoint one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability. Every vote taken by ballots shall be
counted by an inspector or inspectors appointed by the chairman of the
meeting.
2.16 INSPECTORS OF ELECTION AND PROCEDURES FOR COUNTING WRITTEN CONSENTS
Within three (3) business days after receipt of the earliest dated
consent delivered to the corporation in the manner provided in Section 228(c)
of the Delaware General Corporation Law or the determination by the board of
directors of the corporation that the corporation should seek
corporate action by written consent, as the case may be, the secretary may
engage nationally recognized independent inspectors of elections for the
purpose of performing a ministerial review of the validity of the consents
and revocations. The cost of retaining inspectors of election shall be borne
by the corporation.
Consents and revocations shall be delivered to the inspectors upon
receipt by the corporation, the stockholder or stockholders soliciting
consents or soliciting revocations in opposition to action by consent
proposed by the corporation (the "Soliciting Stockholders") or their proxy
solicitors or other designated agents. As soon as consents and revocations
are received, the inspectors shall review the consents and revocations and
shall maintain a count of the number of valid and unrevoked consents. The
inspectors shall keep such count confidential and shall not reveal the count
to the corporation, the Soliciting Stockholders or their representatives or
any other person or entity. As soon as practicable after the earlier of (i)
sixty (60) days after the date of the earliest dated consent delivered to the
corporation in the manner provided in Section 228(c) of the Delaware General
Corporation Law or (ii) a written request therefor by the corporation or the
Soliciting Stockholders (whichever is soliciting consents) (which request,
except in the case of corporate action by written consent taken pursuant
to the solicitations of not more than ten (10) persons, may be made no
earlier than after such reasonable amount of time after the commencement date
of the applicable solicitation of consents as is necessary to permit the
inspectors to commence and organize their count, but in no event less than
five (5) days after such commencement date), notice of which request shall be
given to the party opposing the solicitation of consents, if any, which
request shall state that the corporation or Soliciting Stockholders, as the
case may be, have a good faith belief that the requisite number of valid and
unrevoked consents to authorize or fake the action specified in the consents
has been
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received in accordance with these by-laws, the inspectors shall issue a
preliminary report to the corporation and the Soliciting Stockholders
stating: (i) the number of valid consents; (ii) the number of valid
revocations; (iii) the number of valid and unrevoked consents; (iv) the
number of invalid consents; (v) the number of invalid revocations; and (vi)
whether, based on their preliminary count, the requisite number of valid and
unrevoked consents has been obtained to authorize or take the action
specified in the consents.
Unless the corporation and the Soliciting Stockholders shall agree to a
shorter or longer period, the corporation and the Soliciting Stockholders
shall have 48 hours to review the consents and revocations and to advise the
inspectors and the opposing party in writing as to whether they intend to
challenge the preliminary report of the inspectors. If no written notice of
an intention to challenge the preliminary report is received within 48 hours
after the inspectors' issuance of the preliminary report, the inspectors
shall issue to the corporation and the Soliciting Stockholders their final
report containing the information from the inspectors' determination with
respect to whether the requisite number of valid and unrevoked consents was
obtained to authorize and take the action specified in the consents. If the
corporation or the Soliciting Stockholders issue written notice of an
intention to challenge the inspectors' preliminary report within 48 hours
after the issuance of that report, a challenge session shall be scheduled by
the inspectors as promptly as practicable. A transcript of the challenge
session shall be recorded by a certified court reporter. Following
completion of the challenge session, the inspectors shall as promptly as
practicable issue their final report to the corporation and the Soliciting
Stockholders, which report shall contain the information included in the
preliminary report, plus all changes made to the vote totals as a result of
the challenge and a certification of whether the requisite number of valid
and unrevoked consents was obtained to authorize or take the action specified
in the consents. A copy of the final report of the inspectors shall be
included in the book in which the proceedings of meetings of stockholders are
recorded.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware and
any limitations in the certificate of incorporation or these by-laws relating
to action required to be approved by the stockholders or by the outstanding
shares, the business and affairs
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of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The number of directors of the corporation shall be three (3) people
until changed by a proper amendment of this Section 3.2.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these by-laws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Directors need not be stockholders unless so required by the
certificate of incorporation or these by-laws, wherein other qualifications
for directors may be prescribed. Each director, including a director elected
to fill a vacancy, shall hold office until his successor is elected and
qualified or until his earlier resignation or removal.
Nominations for election to the board of directors of the corporation at
an annual meeting of stockholders may be made by the board or on behalf of
the board by a nominating committee appointed by the board, or by any
stockholder of the corporation entitled to vote for the election of directors
at such meeting. Such nominations, other than those made by or on behalf of
the board, shall be made by notice in writing received by the secretary of
the corporation not less than thirty (30) days nor more than sixty (60) days
prior to the date of the annual meeting; provided, however, that if less than
thirty-five (35) days notice of the meeting is given to stockholders, such
nomination shall have been received by the secretary not later than the close
of business on the seventh (7th) day following the day on which the notice
was mailed. Such notice shall set forth (i) the name and address of the
stockholder who intends to make the nomination; (ii) a representation that
the nominating 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 and nominate the person or persons specified in the notice;
(iii) the number of shares of stock held beneficially and of record by the
nominating stockholder; (iv) the name, age, business address and, if known,
residence address of each nominee proposed in such notice; (v) the principal
occupation or employment of such nominee; (vi) the number of shares of stock
of the corporation beneficially owned by each such nominee; (vii) a
description of all arrangements or understandings between the nominating
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
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made by the nominating stockholder; (viii) any other information concerning
the nominee that must be disclosed of nominees in proxy solicitations
pursuant to Regulation 14A under the Securities Exchange Act of 1934; and
(ix) the consent of such nominee to serve as a director of the corporation if
so elected.
The chairman of the annual meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with
the foregoing procedure. If such determination and declaration is made, the
defective nomination shall be disregarded.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the
corporation. When one or more directors so resigns and the resignation is
effective at a future date, only a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this section in the filling of other vacancies.
Unless otherwise provided in the certificate of incorporation or these
by-laws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled only by
a majority of the directors then in office, although less than a quorum, or
by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled only by a majority of the
directors elected by such class or classes or series thereof then in office,
or by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of stockholders
in accordance with the provisions of the certificate of incorporation or
these by-laws, or may apply to the Court of Chancery for a decree summarily
ordering an election as provided in Section 211 of the General Corporation
Law of Delaware.
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If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten (10) percent of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors
then in office as aforesaid, which election shall be governed by the
provisions of Section 211 of the General Corporation Law of Delaware as far
as applicable.
3.5 PLACE OF-MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both
regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, members of the board of directors, or any committee designated by
the board of directors, may participate in a meeting of the board of
directors, or any 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 in a meeting shall
constitute presence in person at the meeting.
3.6 REGULAR MEETINGS
Regular meetings of the board of directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have
been established by the board of directors and publicized among all
directors. A notice of each regular meeting shall not be required.
3.7 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes
may be called at any time by the secretary or by any executive officer of the
corporation, or by one-third of the directors then in office (rounded up to
the nearest whole number) and shall be held at a place, on a date and at a
time as such officer or such directors shall fix. Notice of the place, date
and time of special meetings, unless waived, shall be given to each director
by mailing written notice not less than two (2) days before the meeting or by
sending a facsimile transmission of the same not less than two (2) hours
before the time of the holding of the meeting. If the circumstances warrant,
notice may also be given personally or by telephone not less than two (2)
hours before the time of the holding of the meeting. Oral notice given
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personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has
reason to believe will promptly communicate it to the director. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
3.8 QUORUM
At all meetings of the board of directors, a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the board of directors, except as may
be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these by-laws, a written waiver thereof, signed by the person 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 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 or these by-laws.
3.10 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors,
then the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is
present.
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3.11 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or these
by-laws, any action required or permitted to be taken at any meeting of the
board of directors, or of any committee thereof, may be taken without a
meeting if all members of the board or committee, as the case may be, consent
thereto in writing and the writing or writings are filed with the minutes of
proceedings of the board or committee.
3.12 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or these
by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any,
of attendance of each meeting of the board of directors and may be paid a
fixed sum 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 receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.13 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a director of the
corporation or its subsidiaries, whenever, in the judgment of the directors,
such loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section contained shall be deemed
to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.14 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these by-laws, any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors; provided,
however, that, so long as stockholders of the corporation are entitled to
cumulative voting, if less than the entire board is to be removed, no
director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if then cumulatively voted at an election of
the entire board of directors.
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3.15 CONDUCT OF BUSINESS
At any meeting of the board of directors, business shall be transacted
in such order and manner as the board may from time to time determine, and
all matters shall be determined by the vote of a majority of the directors
present, except as otherwise provided in the certificate of incorporation or
these by-laws or as required by law.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority of the
whole board, designate one or more committees, with each committee to consist
of one or more of the directors of the corporation. The board may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. 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, she 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 in the resolution of the board of directors or in the by-laws of the
corporation, 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 that may require it; but no such committee shall have the power or
authority to (i) amend the certificate of incorporation (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of
directors as provided in Section 151(a) of the General Corporation Law of
Delaware, fix the designation and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the corporation or fix the
number of shares of any series of stock or authorize the increase or decrease
of the shares of any series), (ii) adopt an agreement of merger or
consolidation under Section 251 or 252 of the General Corporation Law of
Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, (iv)
recommend to the stockholders a dissolution of the corporation or a
revocation of a
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dissolution, or (v) amend the by-laws of the corporation; and, unless the
board resolution establishing the committee, a supplemental resolution of the
board of directors, the by-laws or the certificate of incorporation expressly
so provide, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law
of Delaware.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these by-laws,
Section 3.5 (place of meetings and meetings by telephone), Section 3.6
(regular meetings), Section 3.7 (special meetings and notice), Section 3.8
(quorum), Section 3.9 (waiver of notice), Section 3.10 (adjournment and
notice of adjournment), and Section 3.11 (action without a meeting), with
such changes in the context of those by-laws as are necessary to substitute
the committee and its members for the board of directors and its members;
provided, however, that the time of regular meetings of committees may be
determined either by resolution of the board of directors or by resolution of
the committee, that special meetings of committees may also be called by
resolutions of the board of directors, and that notice of special meetings of
committees shall also be given to all alternate members, who shall have the
right to attend all meetings of the committee. The board of directors may
adopt rules for the government of any committee not inconsistent with the
provisions of these by-laws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president, a secretary, and a
chief financial officer. The corporation may also have, at the discretion of
the board of directors, a chairman of the board, one or more vice presidents,
one or more assistant secretaries, a controller, one or more assistant
controllers, a treasurer, one or more assistant treasurers, and any such
other officers as may be appointed in accordance with the provisions of
Section 5.3 of these by-laws. Any number of offices may be held by the same
person.
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5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or 5.5 of these
by-laws, shall be elected by the board of directors, subject to the rights,
if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the president to appoint,
such other officers and agents as the business of the corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these by-laws or as the board of
directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the board of directors at any regular or
special meeting of the board or, except in the case of an officer chosen by
the board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice, and, unless
otherwise specified in that notice, the acceptance of the resignation shall
not be necessary to make it effective. Any resignation is without prejudice
to the rights, if any, of the corporation under any contract to which the
officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled
in the manner prescribed in these by-laws for regular appointments to that
office.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise and
perform such other powers and duties as may from time to time be assigned to
him by the board of directors or as may be prescribed by these by-laws. If
there is no president, then the chairman of the board shall also be the chief
executive officer of
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the corporation and shall have the powers and duties prescribed in Section
5.7 of these by-laws.
5.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the board
of directors to the chairman of the board, if there be such an officer, the
president shall be the chief executive officer of the corporation and shall,
subject to the control of the board of directors, have general
supervision, direction, and control of the business and the officers of the
corporation. He shall preside at all meetings of the stockholders and, in
the absence or non-existence of a chairman of the board, at all meetings of
the board of directors. He shall have the general powers and duties of
management usually vested in the office of president of a corporation and
shall have such other powers and duties as may be prescribed by the board of
directors or these by-laws.
5.8 VICE PRESIDENTS
In the absence or disability of the president, the vice presidents, if
any, in order of their rank as fixed by the board of directors or, if not
ranked, a vice president designated by the board of directors, shall perform
all the duties of the president and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the board of
directors, these by-laws, the president or the chairman of the board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors,
committees of directors, and stockholders. The minutes shall show the time
and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented
at stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names
of all stockholders and their addresses, the number and classes of shares
held by each, the number and date of certificates evidencing such shares, and
the
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number and date of cancellation of every certificate surrendered for
cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be given by law
or by these by-laws. He or she shall keep the seal of the corporation, if
one be adopted, in safe custody and shall have such other powers and perform
such other duties as may be prescribed by the board of directors or by these
by-laws.
5.10 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of accounts shall at all reasonable
times be open to inspection by any director.
The chief financial officer shall deposit all money and other valuables
in the name and to the credit of the corporation with such depositories as
may be designated by the board of directors. He shall disburse the funds of
the corporation as may be ordered by the board of directors, shall render to
the president and directors, whenever they request it, an account of all of
his transactions as chief financial officer and of the financial condition of
the corporation and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or these by-laws. The
duties of the chief financial officer may be allocated by the board of
directors among one or more persons, in its discretion.
5.11 ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the assistant
secretaries in the order determined by the stockholders or board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of
the secretary and shall perform such other duties and have such other powers
as the board of directors or the stockholders may from time to time prescribe.
5.12 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such duties in
the management of the business of the
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corporation as may be designated from time to time by the board of directors
or the stockholders.
5.13 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the president, any vice president, the chief
financial officer, the secretary or assistant secretary of this corporation
or any other person authorized by the board of directors or the president or
a vice president, is authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority granted herein may be exercised either by such person directly or
by any other person authorized to do so by proxy or power of attorney duly
executed by such person having the authority.
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted
by the General Corporation Law of Delaware, indemnify each of its directors
and officers against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was
an agent of the corporation. For purposes of this Section 6.1, a
"director" or "officer" of the corporation includes any person (i) who is or
was a director or officer of the corporation, (ii) who is or was serving at
the request of the corporation as a director or officer of another
corporation partnership, joint venture, trust or other enterprise, or (iii)
who was a director or officer of a corporation that was a predecessor
corporation of the corporation or of another enterprise at the request of
such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and in the manner
permitted by the General Corporation Law of Delaware, to indemnify each of
its employees and agents (other than directors and officers) against expenses
(including attorney's fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that such person is or was an agent of the corporation.
For purposes of this Section 6.2, an "employee" or "agent" of the corporation
(other than a director or officer) includes any person (i) who is or was an
employee or agent of the corporation, (ii) who
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is or was serving at the request of the corporation as an employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a corporation which was
a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.3 INSURANCE
The corporation may 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 the General
Corporation Law of Delaware.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record
of its stockholders listing their names and addresses and the number and
class of shares held by each stockholder, a copy of these by-laws as amended
to date, accounting books and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose
the corporation's stock ledger, a list of its stockholders, and its other
books and records and to make copies or extracts therefrom. A proper purpose
shall mean a purpose reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other agent is the
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing that authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand
under oath shall be directed to the corporation at its registered office in
Delaware or at its principal place of business.
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7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his position as a director. The Court of
Chancery is hereby vested with the exclusive jurisdiction to determine
whether a director is entitled to the inspection sought. The Court may
summarily order the corporation to permit the director to inspect any and all
books and records, the stock ledger, and the stock list and to make copies or
extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such
other and further relief as the Court may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
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.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders
for payment of money, notes or other evidences of indebtedness that are
issued in the name of or payable to the corporation, and only the persons so
authorized shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these by-laws,
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the
agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
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8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of such a
resolution by the board of directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the corporation
by the chairman or vice-chairman of the board of directors or the president
or vice-president, and by the chief financial officer or the secretary or an
assistant secretary of the corporation representing the number of shares
registered in certificate form. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has 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.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will
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furnish without charge to each stockholder who so requests the powers, the
designations, the preferences, and the relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter
is surrendered to the corporation and cancelled at the same time. The
corporation may issue a new certificate of stock or uncertificated shares in
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give
the corporation a bond sufficient to indemnify it against any claim that may
be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate or
uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the General Corporation Law of Delaware
shall govern the construction of these by-laws. Without limiting the
generality of this provision, the singular number includes the plural, the
plural number includes the singular, and the term "person" includes both a
corporation and a natural person.
8.7 DIVIDENDS
The directors of the corporation, subject to any restrictions contained
in (i) the General Corporation Law of Delaware or (ii) the certificate of
incorporation, may declare and pay dividends upon the shares of its capital
stock. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any
proper purpose and may abolish any such reserve. Such purposes shall include
but not be limited to equalizing dividends, repairing or maintaining any
property of the corporation and meeting contingencies.
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8.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors and may be changed by the board of directors.
8.9 SEAL
The corporation may adopt a corporate seal, which may be altered at
pleasure, and may use the same by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
8.10 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction in
its books.
8.11 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any agreement
with any number of stockholders of any one or more classes of stock of the
corporation to restrict the transfer of shares of stock of the corporation of
any one or more classes owned by such stockholders in any manner not
prohibited by the General Corporation Law of Delaware.
8.12 REGISTERED STOCKHOLDERS
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends
and to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of another person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
8.13 NOTICES
Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director, officer, employee
or agent shall be in writing and may in every instance be effectively given
by hand delivery, by mail, postage paid, or by facsimile transmission. Any
such notice shall be addressed to such stockholder, director, officer,
employee or
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agent at his or her last known address as it appears on the books of the
corporation. The time when such notice shall be deemed received, if hand
delivered, or dispatched, if sent by mail or facsimile transmission, shall
be the time of the giving of the notice.
ARTICLE IX
AMENDMENTS
Any of these by-laws may be altered, amended or repealed by the
affirmative vote of a majority of the board of directors or, with respect to
by-law amendments placed before the stockholders for approval and except as
otherwise provided herein or required by law, by the affirmative vote of the
holders of a majority of the shares of the corporation's stock entitled to
vote in the election of directors, voting as one class.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of
directors of the corporation that the corporation should be dissolved, the
board, after the adoption of a resolution to that effect by a majority of the
whole board at any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the adoption of the
resolution and of a meeting of stockholders to take action upon the
resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation
entitled to vote thereon votes for the proposed dissolution, then a
certificate stating that the dissolution has been authorized in accordance
with the provisions of Section 275 of the General Corporation Law of Delaware
and setting forth the names and residences of the directors and officers
shall be executed, acknowledged, and filed and shall become effective in
accordance with Section 103 of the General Corporation Law of Delaware. Upon
such certificate's becoming effective in accordance with Section 103 of the
General Corporation Law of Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution consent
in writing, either in person or by duly authorized attorney, to a
dissolution, no meeting of directors or stockholders shall be necessary. The
consent shall be filed and shall become effective in accordance with Section
103 of the General Corporation Law of Delaware. Upon such consent's becoming
effective in accor-
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dance with Section 103 of the General Corporation Law of Delaware, the
corporation shall be dissolved. If the consent is signed by an attorney,
then the original power of attorney or a photocopy thereof shall be attached
to and filed with the consent. The consent filed with the Secretary of State
shall have attached to it the affidavit of the secretary or some other
officer of the corporation stating that the consent has been signed by or on
behalf of all the stockholders entitled to vote on a dissolution; in
addition, there shall be attached to the consent a certification by the
secretary or some other officer of the corporation setting forth the names
and residences of the directors and officers of the corporation.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may appoint
one or more persons to be custodians and, if the corporation is insolvent, to
be receivers, of and for the corporation when:
(i) any meeting held for the election of directors the
stockholders are so divided that they have failed to elect successors to
directors whose terms have expired or would have expired upon qualification
of their successors; or
(ii) the business of the corporation is suffering or is
threatened with irreparable injury because the directors are so divided
respecting the management of the affairs of the corporation that the required
vote for action by the board of directors cannot be obtained and the
stockholders are unable to terminate this division; or
(iii) the corporation has abandoned its business and has failed
within a reasonable time to take steps to dissolve, liquidate or distribute
its assets.
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver
appointed under Section 291 of the General Corporation Law of Delaware, but
the authority of the custodian shall be to continue the business of the
corporation and not to liquidate its affairs and distribute its assets,
except when the Court of Chancery otherwise orders and except in cases
arising under Sections 226(a)(3) or 352(a)(2) of the General Corporation
Law of Delaware.
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