Exhibit 3.9.2
BYLAWS
OF
EE ACQUISITION, INC.
A DELAWARE CORPORATION
ARTICLE I
CORPORATE OFFICES
Section 1. REGISTERED OFFICE. The registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
Section 2. PRINCIPAL OFFICE. The principal office of the Corporation
is hereby located at: Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
The Board of Directors (herein referred to as the "Board") is hereby
granted the full power and authority, by a resolution of a majority of the
directors, to change the principal office from one location to another. Any such
change shall be noted in these Bylaws opposite this section, and this section
may be amended to state the new location.
Section 3. OTHER OFFICES. The Corporation may establish any additional
offices, at any place or places, as the Board may designate, or as the business
of the Corporation shall require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 1. PLACE OF MEETING. Meetings of the Stockholders of the
Corporation shall be held at the principal office or at such place, within or
without the State of Delaware, as may from time to time be designated for that
purpose either by the Board or by the written consent of all persons entitled to
vote thereat and not present at the meeting, given either before or after the
meeting and filed with the Secretary of the Corporation.
Section 2. ANNUAL MEETINGS. The annual meeting of the Stockholders
shall be held on such date and at such time designated, from time to time, by
resolution of the Board, or, in the absence of such designation, on the 31st day
of March at 10:00 a.m., eastern time; provided, however, that if such day is a
legal holiday, then at the same time and place on the next day thereafter which
is a full business day.
Section 3. SPECIAL MEETINGS. Special meetings of the Stockholders for
the purpose of taking any action which the Stockholders are permitted to take
under the General Corporation Law of the State of Delaware (herein, as the same
may from time to time be amended, referred to as the "General Corporation Law")
may be called at any time by the Chief Executive Officer, or the President, or
the Board.
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Section 4. NOTICE OF MEETINGS. Except as otherwise provided by
statute, written or printed notice of each meeting of the Stockholders of the
Corporation, whether annual or special, shall be given not less than ten nor
more than sixty days prior to the date upon which the meeting is to be held to
each stockholder entitled to vote at such meeting by leaving such notice with
him personally at, or by transmitting such notice with confirmed delivery
(including telex, telegraph, cable or other form of recorded communication,
provided that delivery of such notice in written form is confirmed in a writing)
to, his residence or usual place of business. If mailed, such notice shall be
deemed delivered when deposited in the United States mail in a sealed envelope
addressed to the stockholder at his address as it appears on the stock records
of the Corporation, with postage thereon prepaid. Such notice shall state 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. If 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 and, at the adjourned meeting, such business may be transacted as might
properly have been transacted at the original meeting. If the adjournment is
for more than 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.
Notice of a Stockholders' meeting or adjournment thereof is waived upon the
occurrence of the following:
(a) A Stockholders' meeting is adjourned and a time and place for
readjournment is announced at the meeting at which the adjournment is taken, and
such date of readjustment is no more than 30 days from the date of adjournment.
(b) Receipt by the Corporation of a written notice of waiver, signed by
the person entitled to notice before or after the time stated therein.
(c) Attendance by the person entitled to notice and failure of such person
to object to the transaction of any business because the meeting is not lawfully
called or convened.
Whenever notice is required to be given under any statute or the
Certificate of Incorporation or these Bylaws to any Stockholder to whom (a)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings or (b) all, and at least
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve month period, have been mailed addressed to such
person at his address as shown on the records of the Corporation and have been
returned undeliverable, the giving of notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the Corporation a written notice
setting forth his then current address, the requirement that notice be given to
such person shall be reinstated. In the event that the action taken by the
Corporation is such as to require the filing of a certificate under any of the
other sections of the General Corporation Law, the certificate need not state
that notice was not given to persons to whom notice was not required to be given
pursuant to this Section 4.
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Section 5. QUORUM. On all questions, the presence of the holders of a
majority of the shares entitled to vote, in person or by proxy, shall constitute
a quorum for the transaction of business at any meeting of the Stockholders. On
all questions, the Stockholders present at a duly called or held meeting at
which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough Stockholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
Section 6. ADJOURNED MEETING. Any Stockholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned by vote of a
majority of the shares present, either in person or by proxy, but in the absence
of a quorum no other business may be transacted at such meeting, except as
expressly provided in Section 5 of this Article.
Section 7. VOTING.
(a) The Stockholders entitled to notice of any meeting or to vote at such
meeting shall only be persons whose names stand on the stock records of the
Corporation on the record date determined in accordance with the provisions of
Section 12 of this Article, provided, however, that if no such record date shall
be fixed by the Board, only persons in whose names shares stand on the stock
records of the corporation at the close of business on the business day next
preceding the day on which notice of the meeting is given or if such notice is
waived, at the close of business on the business day next preceding the day on
which the meeting of Stockholders is held, shall be entitled to vote at such
meeting, and such day shall be the record date for such meeting.
(b) Voting shall in all cases be subject to the provisions of Sections 217
and 218 of the Delaware Corporation law (relating to voting of shares held by
fiduciaries, or pledges, held in joint ownership, and voting of shares by voting
trusts or in accordance with other voting agreements).
(c) At each meeting of the stockholders of the Corporation, holders of a
majority of the voting power of the Corporation entitled to vote thereat,
present either in person or by proxy, shall constitute a quorum for the
transaction of business. In the absence of quorum, the Stockholders of the
Corporation present in person or by proxy and entitled to vote at the meeting
may, by majority vote, or, in the absence of all Stockholders, any officer
entitled to preside or act as Secretary at such meeting, shall have the power to
adjourn the meeting from time to time until Stockholders holding the requisite
amount of stock shall be present in person or by proxy. At any such adjourned
meeting at which a quorum may be present, any business may be transacted which
might have been transacted at the meeting as originally called.
(d) On all questions, other than election of directors, each Stockholder
of the Corporation entitled to vote on such questions shall be entitled to vote
in person or by proxy one vote for each share of Common Stock of the Corporation
held by such Stockholder. Unless otherwise provided in the Certificate of
Incorporation or by statute, the affirmative vote of a majority of the shares
represented and voting at a duly held meeting at which a quorum is present shall
be the act of the Stockholders. Unless demanded by a Stockholder present in
person or by proxy at any meeting and entitled to vote thereat, the vote on any
question need
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not be by ballot. Upon demand for a vote by ballot upon any question by any
Stockholder present in person or by proxy at any meeting and entitled to vote
thereat, such vote shall be taken by ballot. On any vote taken by ballot, each
ballot shall be signed by the Stockholder voting, or by his lawful proxy, and
shall state the number and kind of shares voted.
(e) Notwithstanding Section 7(d) hereinabove, every Stockholder complying
with the provisions of this Section 7(e) and entitled to vote at any election of
directors may cumulate his votes and shall be entitled to as many votes as shall
equal the number of votes which (except for this provision as to cumulative
voting) he would be entitled to cast for the election of directors to be elected
by him, and he may cast all of such votes for a single candidate for director
or may distribute them among the number to be voted for, or for any two or more
of them, as he may see fit. No Stockholder shall be entitled to cumulate votes
and cast them for a candidate for director unless such candidate's name shall
have been placed in nomination prior to the voting and the Stockholder shall
have given notice at the meeting prior to the voting for directors of the
Stockholder's intention to cumulate his votes. If any one Stockholder has given
such notice, all Stockholders may cumulate their votes for candidates in
nomination.
Section 8. 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. Any such proxy shall be
delivered to the secretary of such meeting, at or prior to the time designated
in the order of business for so delivering such proxies. A duly elected proxy
shall be irrevocable if it states that it is irrevocable and if, and only so
long as, it is coupled with an interest sufficient in law to support 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 9. STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of Stockholders, a complete list of the Stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each
Stockholder. Such list shall be open to the examination of any Stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any Stockholder
who is present.
Section 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action
required to be taken, or that may be taken, at any annual or special meeting of
the Stockholders of the Corporation, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action to be taken, shall have been signed by the holders of outstanding stock,
eligible to vote on such action, having not less than the minimum number of
votes of each class of stock that would be necessary to authorize or take such
action at a meeting at which all shares of each class of stock entitled to vote
thereon were present and voted.
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The Secretary shall give prompt notice of the taking of any corporate
action without a meeting by less than unanimous written consent to those
Stockholders who have not consented in writing.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of the
Stockholders, the Board may appoint any person, other than nominees for office
as inspectors of election to act at such meeting or any adjournment thereof. If
no inspectors of election are so appointed, the chairman of any such meeting
may, and on the request of any Stockholder or his proxy shall, make such
appointment at the meeting. The number of such inspectors of election shall be
one or three. If appointed at a meeting on the request of one or more
Stockholders or proxies, the affirmative vote of a majority of shares present in
person or by proxy shall determine whether one or three inspectors are to be
appointed. In case any person appointed as inspector fails to appear or refuses
to act, the vacancy may, and on the request of any Stockholder or a
Stockholder's proxy shall, be filled by appointment by the Board in advance of
the meeting, or at the meeting by the chairman of the meeting.
The duties of such inspector shall include: determining the number of
shares outstanding and voting power of each; the shares represented at the
meeting; the existence of a quorum; the authenticity, validity and effect of
proxies; receiving votes, ballots or consents; hearing and determining all
challenges and questions in any way arising in connection with the right to
vote; counting and tabulating all votes or consents; determining when the polls
shall close; determining the result; and performing such acts as may be proper
to conduct the election or vote with fairness to all Stockholders. If there are
three inspectors of election, the decision, act or certificate of a majority is
effective in all respects as the decision, act or certificate of all.
Section 12. RECORD DATE. 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 to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action.
If no record date is fixed:
(a) The record date for determining Stockholders entitled to notice of or
to vote at a meeting of Stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held;
(b) The record date for determining Stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the Board is necessary, shall be the day on which the first written consent
is expressed;
(c) The record date for determining Stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
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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 may fix a new record date for the adjourned
meeting.
Section 13. PROCEDURES FOR MEETINGS. All meetings of Stockholders shall
be conducted according to such rules and procedures as the Board of Directors
may establish by resolution from time to time as being in the best interests of
the Stockholders and as may be deemed appropriate for insuring that such
meetings are conducted in a fair and orderly manner and in accordance with the
Certificate of Incorporation and these Bylaws.
ARTICLE III
BOARD OF DIRECTORS
Section 1. POWERS. The business and affairs of the Corporation shall
be managed by, or under the direction of the Board, except as may be otherwise
provided by the General Corporation Law or in the Certificate of Incorporation
or these Bylaws. Without prejudice to such powers, but subject to the same
limitation, it is hereby expressly declared that the directors shall have the
following powers in addition to other powers enumerated in these Bylaws:
(a) To select and remove all officers, agents and employees of the
Corporation; prescribe any powers and duties for them that are consistent with
law, with the Certificate of Incorporation, and with these Bylaws; fix their
compensation; and require from them security for faithful service;
(b) To conduct, manage and control the affairs and business of the
Corporation, and to make rules and regulations therefor consistent with law,
with the Certificate of Incorporation and with these Bylaws;
(c) To change the offices of the Corporation from one location to another;
to fix and locate from time to time one or more other offices of the Corporation
within or without the State of Delaware; to cause the Corporation to be
qualified to do business and to conduct business in any other state, territory,
dependency or country; and to designate any place within or without the State of
Delaware for the holding of any Stockholders meeting or meetings, including
annual meetings;
(d) To adopt, make and use a corporate seal; to prescribe the forms and
certificates of stock; and to alter the form of the seal and certificates;
(e) To authorize the issuance of shares of stock of the Corporation from
time to time, upon such terms and for such consideration as may be lawful;
(f) To borrow money and incur indebtedness for the purposes of the
Corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, and other evidences of debt and securities therefor.
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Section 2. NUMBER AND QUALIFICATIONS. The number of directors of the
Corporation shall be five (5). Directors need not be Stockholders of the
Corporation unless required by the Certificate of Incorporation.
Section 3. ELECTION AND TERM OF OFFICE. Members of the initial Board
of Directors shall hold office until the first annual meeting of Stockholders
and until their successors have been elected and qualified. The directors of
the Corporation shall be elected at the annual meeting of the Stockholders, but
if such annual meeting is not held or the directors are not elected thereat the
directors may be elected at a special meeting held for that purpose. Each
director shall hold office until the next annual meeting and until a successor
is elected and qualified.
Section 4. VACANCIES.
(a) Unless otherwise provided in the Certificate of Incorporation,
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 by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
(b) 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 and the Bylaws or may apply
to the Delaware Court of Chancery for a decree summarily ordering an election as
provided in Section 211 of the General Corporation Law.
(c) If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any Stockholder or
Stockholders holding at least 10 percent of the total number of 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 Section 211 of the General Corporation Law.
(d) Unless otherwise provided in the Certificate of Incorporation, when
one or more directors shall resign from the Board, effective at a future date, 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 these Bylaws.
(e) 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, except that 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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(f) Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary or the Board, unless the
notice specifies a later date for the effectiveness of such resignation.
Section 5. PLACE OF MEETING. Unless otherwise provided in the
Certificate of Incorporation, or by unanimous written consent of all acting
directors, meetings, both regular and special, of the Board shall be held at the
Corporation's principal executive offices within the State of California or at
such other place or places within or without the State of Delaware, as the Board
may from time to time determine.
Section 6. REGULAR MEETINGS. Immediately following each annual meeting
of the Stockholders the Board shall hold a regular meeting at the same place at
which such Stockholders' meeting is held, or any other place as may be fixed
from time to by the Board of Directors. Notice of such meeting need not be
given.
Other regular meetings of the Board shall be held without call at such time
and place as the Board may from time to time by resolution determine. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day not a
legal holiday. Notice of a regular meeting need not be given.
Section 7. SPECIAL MEETINGS. Except as otherwise provided in the
Certificate of Incorporation, special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
the Secretary or by any three directors.
Written notice of the time and place of special meetings shall be delivered
personally to each director or communicated to each director by telephone or
telegraph or telex or cable or mail or other form of recorded communication,
charges prepaid, addressed to each director at that director's address as it is
shown on the records of the Corporation or, if it is not so shown on such
records or is not readily ascertainable, at that director's residence or usual
place of business. In case such notice is mailed, it shall be deposited in the
United States mail at least seven days prior to the time of the holding of the
meeting. In case such notice is delivered personally or by other form of
written communication, it shall be delivered at least 48 hours before the time
of the holding of the meeting. The notice shall state the time of the meeting,
but need not specify the place of the meeting if the meeting is to be held at
the principal executive office of the Corporation. The notice need not state
the purpose of the meeting unless expressly provided otherwise by statute.
Section 8. MEETINGS BY COMMUNICATION EQUIPMENT. Members of the Board
of the Corporation, or any committee designated by the Board, may participate in
a meeting of the Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
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Section 9. QUORUM AND MANNER OF ACTING. The presence of a majority to
the total number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at a meeting duly
held shall be the act of the Board. In the absence of a quorum, a majority of
the directors present may adjourn any meeting from time to time until a quorum
is present. Notice of an adjourned meeting need not be given.
Section 10. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
transactions of any meeting of the Board, however called and noticed or wherever
held, shall be as valid as though made or performed at a meeting duly held after
regular call and notice, if, either before or after the meeting, each of the
directors not present or who, though present, has prior to the meeting or at its
commencement protested the lack of proper notice to such director, signs a
written waiver of notice or a consent to holding such meeting or approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 11. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board, 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.
Section 12. COMPENSATION OF DIRECTORS. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses incurred by them, as may be fixed or determined by
resolution of the Board of Directors.
Section 13. COMMITTEES. The Board may, by resolution passed by a
majority of the directors, designate one or more committees, 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. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to amending
the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the Stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the Stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Any director may be removed from a
committee with or without cause by the affirmative vote of a majority of the
entire Board of Directors.
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ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a
Chairman, a Chief Executive Officer, a President, a Treasurer and a Secretary.
The Corporation may also have, at the discretion of the Board, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers,
and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article. Any number of offices may be held by the same
person.
Section 2. ELECTION OF OFFICERS. The officers of the corporation,
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article, shall be chosen annually by the Board,
and each shall serve at the pleasure of the Board, subject to the rights, if
any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The Board may appoint, and may
empower the Chief Executive Officer to appoint, such other officers as the
business of the Corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in these
Bylaws or as the Board or Chief Executive Officer may from time to time
determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Without prejudice to
the rights, if any, of an officer under any contract of employment, any officer
may be removed, either with or without cause, by the Board, at any regular or
special meeting of the Board, or by any officer upon whom such power of removal
may be conferred by the Board.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time 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.
Section 5. VACANCIES IN OFFICES. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular election or appointment to
such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such
an officer be elected, shall, if present, preside at all meetings of the Board
and exercise and perform such other powers and duties as may be from time to
time assigned to him by the Board.
Section 7. CHIEF EXECUTIVE OFFICER. Subject to such supervisory
powers, if any, as may be given by the Board to the Chairman of the Board, the
Chief Executive Officer, if such an officer be elected, shall, subject to the
control of the Board and the Chairman, have general supervision, direction and
control of the business and the officers of the Corporation. The Chief
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Executive Officer shall preside at all meetings of the Stockholders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board. The Chief Executive Officer shall exercise and perform such other
powers and duties as may be from time to time assigned to him by the Board.
Section 8. PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board to the Chairman of the Board and the Chief Executive
Officer, if there be such officers, the President shall be the chief operating
officer of the Corporation and shall, subject to the control of the Board, have
general supervision, direction, and control of the business and the officers of
the Corporation (other than the Chairman and Chief Executive Officer). The
President shall preside at all meetings of the Stockholders in the absence of
the Chairman and the Chief Executive Officer, and, in the absence of the
Chairman and the Chief Executive Officer, at all meetings of the Board. The
President shall have the general powers and duties of management usually vested
in the office of president and general manager of a Corporation, and shall have
such other powers and duties as may be prescribed by the Board and the Chief
Executive Officer.
Section 9. VICE PRESIDENTS. In the absence or disability of the
Chairman, the Chief Executive Officer and the President, the Vice Presidents, if
any, in order of their rank as fixed by the Board, or, if not ranked, the Vice
President designated by the Board shall perform all the duties of such officer,
and when so acting shall have all the powers of, and be subject to all the
restrictions upon, such offices. 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, the Chief Executive Officer or the President.
Section 10. SECRETARY. The Secretary shall keep, or cause to be kept,
at the principal executive office or such other place as the Board may direct, a
book of minutes of all meetings and actions of directors, committees of
directors, and Stockholders, with the time and place of holding, whether regular
or special, and, if special, how authorized, 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.
The Secretary shall give, or cause to be given, notice of all meetings of
the Stockholders and of the Board required by the Bylaws or by law to be given,
and he 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.
Section 11. TREASURER. The Treasurer 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, and shall send or cause to be sent to the
Stockholders of the Corporation such financial statements and reports as are by
law or these Bylaws required to be sent to them. The books of account shall at
all reasonable times be open to inspection by any director.
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The Treasurer shall deposit all monies and other valuables in the name or
to the credit of the Corporation with such depositories as may be designated by
the Board. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board, shall render to the President and directors, whenever they
request it, an account of all transactions undertaken 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.
ARTICLE V
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purposes of this
Article, "agent" means any person who is or was a director, officer, employee or
other agent of the corporation, or is or was a director, officer, employee or
other agent of the corporation as a director, officer, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a foreign or
domestic corporation which was a predecessor corporation of the corporation or
of another enterprise at the request of such predecessor corporation;
"proceeding" means any threatened, pending or complete action or proceeding,
whether civil, criminal, administrative, or investigative; and "expenses"
includes, without limitation, attorneys' fees and any expenses of establishing a
right to indemnification under Section 2 or Section 3 of this Article.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. The Corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
a action by or in the right of the Corporation) by reason of the fact that he 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 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 contendre 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.
Section 3. ACTIONS BY THE CORPORATION. The Corporation shall have
power to 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, 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
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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 for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such 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 or such other court shall deem proper.
Section 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 2 and 3, 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.
Section 5. REQUIRED APPROVAL. Any indemnification under Sections 1 and
2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 2 and 3. Such
determination shall be made (a) by the Board by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (b) if such disinterested directors so direct, by independent legal counsel
in a written opinion, or (c) by the affirmative vote of a majority of
Stockholders.
Section 6. ADVANCE OF EXPENSES. 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 as authorized by the
Board in the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board deems appropriate.
Section 7. CONTRACTUAL RIGHTS. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any 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, and shall
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.
Section 8. LIMITATIONS. No indemnification or advance shall be made
under this Article, except as provided in Section 4, in any circumstances where
it appears:
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(a) That it would be inconsistent with a provision of the Certificate of
Incorporation, a resolution of the Stockholders or an agreement in effect at the
time of accrual of the alleged cause of action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed by
a court in approving a settlement.
Section 9. INSURANCE. The Corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article.
Section 10. CONSTITUENT CORPORATIONS. For purposes of this Article,
references to "the Corporation" shall include, in addition to the 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, 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 the provisions of this
Article 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 11. DEFINITIONS. For purposes of this Article, 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 Article.
ARTICLE VI
MISCELLANEOUS
Section 1. INSPECTION OF BOOKS AND RECORDS BY STOCKHOLDERS. 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
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attorney or other agent shall be the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of attorney or such other
writing which 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 the State of Delaware or at its principal place of
business.
Section 2. INSPECTION OF BOOKS AND RECORDS 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. Such right to examine the records and books of the
Corporation shall include the right to make copies and extract therefrom.
Section 3. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
drafts, or other orders for payment of money, notes, or other evidences of
indebtedness, issued in the name of or payable to the Corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time to
time, shall be determined by resolution of the Board.
Section 4. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The
Board, except as otherwise provided in these Bylaw, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation, and this authority may be
general or confined to specific instances; and, unless so authorized or ratified
by the Board 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.
Section 5. CERTIFICATES FOR SHARES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by the Chairman or the President or a Vice-President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation representing the number of shares owned by him in the
Corporation. 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 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.
Section 6. TRANSFER OF SHARES. Transfers of shares of the capital
stock of the Corporation shall be made only on the books of the Corporation by
the holder thereof, or by his attorney thereunto authorized by a power of
attorney duly executed and filed with the Secretary of the Corporation or a
transfer agent of the Corporation, if any, and on surrender of the certificate
or certificates for such shares properly endorsed. A person in whose name
shares of stock and on the books of the Corporation shall be deemed the owner
thereof as regards the Corporation, and upon any transfer of shares of stock the
person or persons into whose name or names such shares shall have been
transferred, with respect to all rights, privileges and obligations of holders
of stock of the Corporation and as against the Corporation or any other person
or persons. The term "person" or "persons" wherever used herein shall be deemed
to
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include any partnership, corporation, association or other entity. Whenever any
transfer of shares shall be made for collateral security, and not absolutely,
such fact, if known to the Secretary or to such transfer agent, shall be so
expressed in the entry of transfer.
Section 7. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may
issue a new certificate of stock 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.
Section 8. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman
of the Board, the President, or any vice president or any person designated by
any of such officers, is authorized, in the absence of authorization by the
Board, to vote on behalf of the Corporation any and all shares of any other
corporation or corporations, foreign or domestic, for which the Corporation has
the right to vote. The authority granted to these officers to vote or represent
on behalf of the Corporation any and all shares held by the Corporation in any
other corporation or corporations may be exercised by any of these officers in
person or by any person authorized to do so by proxy duly executed by these
officers.
Section 9. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
General Corporation Law shall govern the construction of these Bylaws. 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.
Section 10. AMENDMENTS. Unless otherwise provided in the Certificate of
Incorporation, the power to adopt, amend or repeal any Bylaws of the Corporation
shall be in the Stockholders of the Corporation entitled to vote.
Section 11. CONFORMANCE TO THE LAW. In the event that it is determined
that these Bylaws, as now written or as amended, conflict with the General
Corporation Law, or any other applicable law, as now enforced or as amended,
these Bylaws shall be deemed amended, without action of the Board or the
Stockholders, to conform with such law. Such amendment to be so interpreted as
to bring these Bylaws within minimum compliance. For purposes of this section
"amendment" shall include a repeal of, or a change in interpretation of, the
relevant compendium.
Section 12. SEAL. The Board of Directors shall provide a corporate
seal, which shall be in the form of a circle and shall have inscribed thereon
the name of the Corporation, the year of its incorporation and the words
"Corporate Seal, Delaware." Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 13. FISCAL YEAR. The fiscal year of the Corporation shall begin
on the first day of January of each year.
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Section 14. DIVIDENDS; SURPLUS. Subject to the provisions of the
Certificate of Incorporation and any restrictions imposed by statute, the Board
of Directors may declare dividends out of the net assets of the Corporation in
excess of its capital or, in case there shall be no such excess, out of the net
profits of the Corporation for the fiscal year then current and/or the preceding
fiscal year, or out of any funds at the time legally available for the
declaration of dividends (hereinafter referred to as "surplus or net profits")
whenever, and in such amounts as, in its sole discretion, the conditions and
affairs of the Corporation shall render advisable. The Board of Directors in
its sole discretion may, in accordance with law, from time to time set aside
from surplus or net profits such sum or sums as it may think proper as a reserve
fund to meet contingencies, or for equalizing dividends, or for the purpose of
maintaining or increasing the property or business of the Corporation, or for
any other purpose as it may think conducive to the best interests of the
Corporation.
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