Exhibit 3.3
BY-LAWS
OF
TSI MANAGEMENT COMPANY
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1.1 The corporation shall maintain a registered office in the
State of Delaware as required by law. The corporation may also have such
other offices, either within or without the State of Delaware, as the
business of the corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. An annual meeting of the stockholders
shall be held commencing in 1997 on the third Thursday of May of each year,
if not a legal holiday, and if a legal holiday, then on the next succeeding
business day, for the election of directors and for the transaction of such
other business as may come before the meeting.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the stockholders may
be called by the President, the board of directors, or by a request in
writing from the holders of not less than 25% of the issued and outstanding
voting stock of the corporation. Within ten days after the receipt of such a
written request, the President or another officer designated by the President
must send a notice of meeting in accordance with section 2.4 hereof.
SECTION 2.3 PLACE OF MEETING. The board of directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or for any special meeting called by the board
of directors. If a special meeting be called otherwise than by the board of
directors, the place of meeting must be in the county of Chester, State of
Pennsylvania.
SECTION 2.4 NOTICE OF MEETING. Written notice stating the place, date
and hour of the meeting, the place where the stockholder list may be examined
prior to the meeting, if different from the place of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be given in person or sent by mail or overnight express service
not less than ten nor more than sixty days before the date of the meeting, or
in the case of a merger or consolidation of the corporation requiring
stockholder approval or a sale, lease or exchange of all or substantially all
of the corporation's assets, not less than twenty nor more than sixty days
before the date of meeting, to each stockholder of record entitled to vote at
such meeting, If mailed, notice shall be deemed 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. If notice is given
by
overnight express service, such notice shall be deemed given one day after
delivery to such express service. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken, unless the adjournment is for more than thirty days, or unless, after
adjournment, a new record date is fixed for the adjourned meeting, in either
of which cases notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. Notice need not be
given to any stockholder who submits a written waiver of notice signed by
such stockholder either before or after any meeting. Attendance by a
stockholder at a meeting of stockholders shall constitute a waiver of notice
of such meeting, except when the stockholder attends the 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 need be specified in any waiver of notice of such
meeting.
SECTION 2.5 FIXING OF RECORD DATE. (a) In order that the corporation
may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, the board of directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than sixty nor less than
ten days before the date of such meeting. If no record date is fixed by the
board of directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day
on which the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
board of directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
board of directors, and which date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the board
of directors. If no record date has been fixed by the board of directors,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by the Delaware General Corporation Law, shall be the
first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the corporation by delivery to its
registered office in 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. If no record date has been fixed by the board of directors
and prior action by the board of directors is required by the Delaware
General Corporation Law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be
at the close of business on the day on which the board of directors adopts
the resolution taking such prior action.
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(c) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the board of directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall be not more than
sixty days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of
business on the day on which the board of directors adopts the resolution
relating thereto.
SECTION 2.6 VOTING LISTS. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and number of shares registered in his name,
which list, for a period of ten days prior to such meeting, shall be kept on
file either at a place within the city where the meeting is to be held and
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, and shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
at any time during ordinary business hours. Such list shall also be produced
and kept at the time and place of the meeting during the whole time thereof,
and may be inspected by any stockholder who is present.
SECTION 2.7 STOCK LEDGER. The stock ledger shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger or the
books of the corporation, or to vote in person or by proxy at any meeting of
stockholders.
SECTION 2.8 QUORUM. A majority of the outstanding shares of voting
stock of the corporation, represented in person or by proxy, shall constitute
a quorum at any meeting of stockholders; provided, however, that if less than
a majority of the outstanding shares of voting stock are represented at said
meeting, a majority of the shares of voting stock so represented may adjourn
the meeting. If a quorum is present, the affirmative vote of a majority of
the shares of voting stock represented at the meeting shall be the act of the
stockholders in all matters other than the election of directors, who shall
be elected by a plurality of the votes of the shares present in person or by
proxy and entitled to vote on the election of directors, unless the vote of a
greater number or voting by classes is required by the Delaware General
Corporation Law, the certificate of incorporation or these by-laws. At any
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the original meeting.
Requirements of notice at any adjourned meeting are governed by Section 2.4
hereof. Withdrawal of stockholders from any meeting shall not cause failure
of a duly constituted quorum at that meeting.
SECTION 2.9 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
proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Every proxy must be
signed by the stockholder or his attorney-in-fact. A duly executed proxy
shall be irrevocable if it states that it is irrevocable, and if, and only as
long as, it is coupled with an interest sufficient in law to support
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an irrevocable power. A proxy may be made irrevocable regardless of whether
the interest with which it is coupled is an interest in the stock itself or
an interest in the corporation generally.
SECTION 2.10 VOTING OF STOCK. Subject to the provisions of the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of the voting stock held
by such stockholder.
SECTION 2.11 VOTING OF STOCK BY CERTAIN HOLDERS. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held.
Persons whose stock is pledged shall be entitled to vote, unless in the
transfer by the pledgor on the books of the corporation he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee or his
proxy may represent such stock and vote thereon. Shares of its own stock
belonging to the corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation, shall
neither be entitled to vote nor counted for quorum purposes, but shares of
its stock held by the corporation in a fiduciary capacity may be voted by it
and counted for quorum purposes.
SECTION 2.12 CONSENT OF STOCKHOLDERS. (a) Unless otherwise provided in
the certificate of incorporation, any action required to be taken at any
annual or special meeting of stockholders of the corporation, or any action
which may 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 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 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 made to
the corporation's registered office in Delaware shall be by hand or by
certified or registered mail, return receipt requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty days of
the earliest dated consent delivered in the manner required by this section
to the corporation, written consents signed by a sufficient number of holders
to take such action are delivered to the corporation by delivery to its
registered office in 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 in Delaware shall be by hand or by certified or registered
mail, return receipt requested.
(c) Prompt notice of the taking of any corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented thereto in writing.
SECTION 2.13 VOTING BY BALLOT. Voting in any election of directors
may, if permitted by the certificate of incorporation, be by voice vote, and
voting on any other question shall be by
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voice vote unless, in each case, the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
SECTION 2.14 INSPECTORS. The board of directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election to act
at the meeting or any adjournment thereof. If an inspector or inspectors are
not appointed, the person presiding at the meeting may, or upon the request
of any stockholder shall, appoint one or more inspectors. In case any person
who may be appointed as an inspector fails to appear or act, the vacancy may
be filled by appointment made by the directors in advance of the meeting or
at the meeting by the person presiding thereat. Each inspector, if any,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if
any, shall determine the number of shares of stock outstanding and the voting
power of each, the shares of stock represented at the meeting, the existence
of a quorum, the validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising
in connection with the right to vote, count and tabulate all votes, ballots
or consents, determine the result, and do such acts as are proper to conduct
the election or vote with fairness to all stockholders. On request of the
person presiding at the meeting, the inspector or inspectors, if any, shall
make a report in writing of any challenge, question or matter determined by
him or them and execute a certificate of any fact found by him or them.
ARTICLE III
DIRECTORS
SECTION 3.1 GENERAL POWERS. The business of the corporation shall be
managed by or under the direction of its board of directors, except as
otherwise provided in the certificate of incorporation.
SECTION 3.2 NUMBER AND QUALIFICATIONS. The number of directors of the
corporation shall be nine (9) or such other number as may be determined from
time to time by the board of directors of the corporation at a duly held
meeting thereof. Directors need not be stockholders of the corporation,
citizens of the United States or residents of the State of Delaware.
SECTION 3.3 ELECTION AND TERM. The board of directors shall be elected
at the annual meeting of the stockholders of the corporation and shall hold
office until their successors are elected and qualified or until their
earlier death, resignation or removal. Any director may resign at any time
upon written notice to the corporation. Thereafter, directors who are
elected at an annual meeting of stockholders, and directors who are elected
in the interim to fill vacancies and newly created directorships, shall hold
office until the next annual meeting of stockholders and until their
successors are elected and qualified or until their earlier death,
resignation or removal. In the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election
of directors and/or for the removal of one or more directors and for the
filling of any
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vacancy in that connection, newly created directorships and any vacancies in
the board of directors, including vacancies resulting from the removal of
directors, may be filled by the vote of a majority of the remaining directors
then in office, although less than a quorum, or by the sole remaining
director.
SECTION 3.4 REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without other notice than this by-law, immediately
after, and at the same place as, the annual meeting of stockholders.
Meetings of the board of directors may be held either within or without the
State of Delaware. The board of directors may provide, by resolution, the
time and place for the holding of additional regular meetings without other
notice than such resolution.
SECTION 3.5 SPECIAL MEETINGS. Special meetings of the board of
directors may be called by or at the request of the President or any
director. The person or persons calling such special meeting of the board of
directors shall fix a place, either within or without the State of Delaware,
as the place for holding such special meeting of the board of directors.
SECTION 3.6 NOTICE. Notice of any special meeting stating the time and
place of such meeting shall be given at least three days previous thereto by
written notice delivered personally or sent by mail or overnight express
service to each director at his business address. Such notice shall be
deemed to be delivered when deposited in the United States mail or given to
such overnight express service so addressed, with postage thereon prepaid.
Notice need not be given to any director who submits a written waiver of
notice signed by him either before or after any meeting. The attendance of a
director at any meeting shall constitute a waiver of notice of such meeting,
except where a director 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 board of directors need be specified in the notice or waiver
of such meeting.
SECTION 3.7 QUORUM. A majority of the number of directors fixed by or
determined in accordance with these by-laws (or of the members of any
committee in the case of a meeting of a committee of the board of directors)
shall constitute a quorum for the transaction of business at any meeting of
the board of directors or of such committee, provided, however, that if less
than a majority of such number of directors are present at said meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice. Interested directors may be counted in determining
the presence of a quorum at a meeting of the board of directors or of a
committee thereof.
SECTION 3.8 MANNER OF ACTING. The vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the
board of directors or of a committee of the board, as the case may be.
SECTION 3.9 ACTION WITHOUT A MEETING. 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
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meeting if all the members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
SECTION 3.10 COMPENSATION. The board of directors shall have authority
to establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise.
SECTION 3.11 LIABILITY FOR UNLAWFUL PAYMENT OF DIVIDEND. In case of
any willful or negligent violation of the provisions of sections 160 or 173
of the Delaware General Corporation Law regarding the payment of dividends,
any director who may have been absent when the same was done, or who may have
dissented from the act or resolution by which the same was done, may
exonerate himself from such liability by causing his dissent to be entered on
the books containing the minutes of the proceedings of the directors at the
time the same was done, or immediately after he has notice of the same.
SECTION 3.12 TELEPHONE MEETINGS. Members of the board of directors or
of any committee thereof may participate in a meeting of the board by means
of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at the meeting.
SECTION 3.13 REMOVAL. 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.
SECTION 3.14 COMMITTEES. The board of directors may, by resolution
passed by a majority of the whole board, designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
Any such committee, to the extent provided in the resolution of the board of
directors, 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, to the extent permitted under the Delaware General Corporation
Law.
ARTICLE IV
OFFICERS
SECTION 4.1 NUMBER. The officers of the corporation shall be a
Chairman of the Board, a Vice-Chairman of the Board, a President and Chief
Executive Officer, a Vice President - Finance, a Treasurer, a Secretary, an
Assistant Secretary, and such other Vice Presidents, Assistant Treasurers,
Assistant Secretaries or other officers as may be elected by the board of
directors. Any two or more offices may be held by the same person.
SECTION 4.2 ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected annually by the board of directors at the first
meeting of the board of directors held after
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each annual meeting of stockholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as
convenient. New offices may be created and filled at any meeting of the
board of directors. Each officer shall hold office until his successor is
elected and has qualified or until his earlier death, resignation or removal.
Any officer may resign at any time upon written notice to the corporation.
Election of an officer shall not of itself create contract rights.
SECTION 4.3 REMOVAL. Any officer elected by the board of directors may
be removed by the board of directors whenever in its judgment the best
interests of the corporation would be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
SECTION 4.4 VACANCIES. A vacancy in any office occurring because of
death, resignation, removal or otherwise, may be filled by the board of
directors.
SECTION 4.5 THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the board of directors, and shall have such other
duties and responsibilities as may be assigned to him from time to time by
the board of directors.
SECTION 4.6 THE VICE-CHAIRMAN OF THE BOARD. The Vice-Chairman of the
Board shall report to the Chairman of the Board, and shall have such duties
and responsibilities as may be assigned to him from time to time by the
Chairman of the Board or the board of directors.
SECTION 4.7 THE PRESIDENT AND CHIEF EXECUTIVE OFFICER. The President
shall be the chief executive officer of the corporation and, subject only to
the board of directors, shall have general authority over, and general
management and control of, the property, business and affairs of the
corporation. The President shall preside at all meetings of the
stockholders. The President shall have authority to vote all shares of stock
of any other corporation standing in the name of the corporation, at any
meeting of the stockholders of such other corporation or by written consent
of the stockholders of such other corporation, and may, on behalf of the
corporation, waive any notice of the calling of any such meeting, and may
give a written proxy in the name of the corporation to vote any or all shares
of stock of such other corporation owned by the corporation at any such
meeting. The President shall perform such other duties as may be prescribed
by the board of directors from time to time.
SECTION 4.8 VICE PRESIDENT - FINANCE. The Vice President - Finance
shall report to the President or such other officer as may be determined by
the board of directors. Such Vice President - Finance shall have general
authority over the financial affairs of the corporation, and such other
duties and responsibilities as from time to time may be assigned to him by
the President or the board of directors.
SECTION 4.9 OTHER VICE PRESIDENTS. All other Vice Presidents, if any,
shall report to the President or such other officer as may be determined by
the board of directors. Each Vice
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President shall have such duties and responsibilities as from time to time
may be assigned to him by the President or the board of directors.
SECTION 4.10 THE TREASURER. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the
corporation; receive and give receipts for moneys due and payable to the
corporation from any source whatsoever, and deposit all such moneys in the
name of the corporation in such banks, trust companies or other depositories
as shall be selected in accordance with the provisions of Article V of these
by-laws; (b) in general, perform all the duties incident to the office of the
treasurer and such other duties as may from time to time be assigned to him
by the President or the board of directors. In the absence of the Treasurer,
or in the event of his incapacity or refusal to act, or at the direction of
the Treasurer, the Vice President - Finance or any Assistant Treasurer may
perform the duties of the Treasurer.
SECTION 4.11 THE SECRETARY. The Secretary shall: (a) record all the
proceedings of the meetings of the stockholders and board of directors in one
or more books kept for that purpose; (b) see that all notices are duly given
in accordance with the provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal of the corporation
and see that the seal of the corporation is affixed to all certificates for
shares of stock, instruments and all other documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these by-laws; (d) keep a register of the post office
address of each stockholder which shall be furnished to the Secretary by such
stockholder; (e) have general charge of the stock transfer books of the
corporation and (f) in general, perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him
by the President or the board of directors. In the absence of the Secretary,
or in the event of his incapacity or refusal to act, or at the direction of
the Secretary, any Assistant Secretary may perform the duties of Secretary.
SECTION 4.12 THE ASSISTANT SECRETARY. The Assistant Secretary reports
to the Secretary of the corporation and shall have such duties and
responsibilities as may be assigned to him from time to time by the
President, the Secretary or the board of directors.
ARTICLE V
CONTRACTS, LOANS
CHECKS AND DEPOSITS
SECTION 5.1 CONTRACTS. Except as otherwise determined by the board of
directors or provided in these by-laws, all deeds and mortgages made by the
corporation and all other written contracts and agreements to which the
corporation shall be a party shall be executed in its name by the President
or any Vice President.
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SECTION 5.2 LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the board of directors. Such authority
may be general or confined to specific instances.
SECTION 5.3 CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
SECTION 5.4 DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the board
of directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES OF
STOCK AND THEIR TRANSFER
SECTION 6.1 CERTIFICATES FOR SHARES OF STOCK. Certificates
representing shares of stock of the corporation shall be in such form as may
be determined by the board of directors. Such certificates shall be signed
by the President or any Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary. If any such
certificate is manually countersigned by a transfer agent other than the
corporation or its employee, any other signature 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 such 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. The name of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
books of the corporation. All certificates surrendered to the corporation
for transfer shall be canceled and no new certificates shall be issued until
the former certificate for a like number of shares shall have been
surrendered and canceled, except that in case of a lost, destroyed or
mutilated certificate, a new certificate may be issued therefor upon such
terms, indemnity and surety to the corporation as the board of directors may
prescribe.
SECTION 6.2 TRANSFER OF SHARES OF STOCK. Transfers of shares of stock
of the corporation shall be made on the books of the corporation by the
holder of record thereof or by his legal representative, who shall furnish
proper evidence of authority to transfer, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation, and on surrender for cancellation of the certificate for
such shares. The person in whose name shares of stock stand on the books of
the corporation shall be deemed the owner thereof for all purposes as regards
the corporation.
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SECTION 6.3 TRANSFER AGENTS AND REGISTRARS. The board of directors may
appoint one or more transfer agents or assistant transfer agents and one or
more registrars of transfers, and may require all certificates for shares of
stock of the corporation to bear the signature of a transfer agent or
assistant transfer agent and a registrar of transfers. The board of
directors may at any time terminate the appointment of any transfer agent or
any assistant transfer agent or any registrar of transfers.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 DIRECTORS AND OFFICERS. (a) The corporation shall indemnify
any person who was or is a party or is threatened to be made 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 is or was a director
or officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner 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 no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery
of the State of Delaware or the court in which action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
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(c) To the extent that any person referred to in paragraphs (a) and (b)
of this Section 7.1 has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to therein or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this section 7.1
(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 or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of this
section 7.1. Such determination shall be made (i) 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 (ii) if such quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
(e) Expenses incurred in defending a civil or criminal 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 the 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
provided in this section 7.1.
(f) The indemnification and advancement of expenses provided by or
granted pursuant to this section 7.1 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any statute, by-law, 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.
(g) 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 section 7.1.
(h) For purposes of this section 7.1, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an 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 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 section.
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(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section 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.
(j) Unless otherwise determined by the board of directors, references
in this section to "the corporation" shall not 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 section with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
SECTION 7.2 EMPLOYEES AND AGENTS. The board of directors may, by
resolution, extend the indemnification provisions of the foregoing section 7.1
to 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 by reason of
the fact that he is or was an employee or agent of the corporation, or 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.
ARTICLE VIII
FISCAL YEAR
SECTION 8.1 The fiscal year of the corporation shall end on December 31
or on such other date as the board of directors may from time to time
determine by resolution.
ARTICLE IX
DIVIDENDS
SECTION 9.1 The board of directors may from time to time declare, and
the corporation may pay, dividends on its outstanding shares of stock in the
manner and upon the terms and conditions provided by law and its certificate
of incorporation.
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ARTICLE X
SEAL
SECTION 10.1 The corporate seal of the corporation shall be in the form
of a circle and shall have the name of the corporation and the words
"Corporate Seal, Delaware" written therein or inscribed thereon.
ARTICLE XI
WAIVER OF NOTICE
SECTION 11.1 Whenever any notice whatever is required to be given under
any provision of these by-laws or of the certificate of incorporation or of
the Delaware General Corporation Law, 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 transactions 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 or
directors or of a committee of the board of directors need be specified in
any written waiver of notice.
ARTICLE XII
AMENDMENTS
SECTION 12.1 These by-laws may be altered, amended or repealed and new
by-laws may be adopted at any meeting of the board of directors of the
corporation by a majority of the whole board of directors then in office, or
by the stockholders.
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