EXHIBIT 3.16
NEW BYLAWS
(As of February 18, 1998)
OF
1+ USA V ACQUISITION CORP.
ARTICLE I
OFFICES
Section 1. Principal Office. The registered office of the Corporation in
the State of Delaware shall be in the City of Wilmington, County of New Castle,
or such other office as may be designated from time to time by the Board of
Directors in the manner provided by law.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall be
held within or without the State of Delaware at such place as may be designated
from time to time by the Board of Directors.
Section 2. Annual Meetings. A meeting of stockholders shall be held
annually for the purpose of the election of directors and to transact such other
business as may be properly brought before the meeting. The annual meeting shall
be held at the date and time designated by the Board of Directors; provided,
that if prior to the first Thursday in September the Board of Directors has
failed to designate a date and time, the annual meeting shall be held at 10:00
a.m. on the first Thursday in September, unless such day shall be a legal
holiday, in which case the annual meeting shall be held on the next succeeding
business day.
Section 3. Notice of Annual Meeting. Written notice of the annual
meeting shall be given to each stockholder entitled to vote thereat not less
than ten (10) nor more than sixty (60) days before the day of the meeting.
Section 4. List of Stockholders Entitled to Vote. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of
stockholders entitled to vote at said meeting, arranged in alphabetical order,
showing the address of and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the election, either at a place within the city, town or
village where the election is to be held and which place shall be specified in
the notice of the meeting, or, if not specified, at the place where said meeting
is to be held. The list shall be produced and kept at the time and place of
election during the whole time thereof, and shall be subject to the inspection
of any stockholder who may be present.
Section 5. Call of Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called at any time by the
president or chairman of the Board of Directors and shall be called by the
president or secretary at the request in writing of a majority of the members of
the Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Notice of Special Meeting. Written notice of a special
meeting of stockholders, stating the time, place and object thereof, shall be
given to each stockholder entitled to vote thereat, not less than ten (10) nor
more than sixty (60) days before the date fixed for the meeting.
Section 7. Transactions at Special Meeting. Business transacted at any
special meeting of the stockholders shall be limited to the purposes stated in
the notice.
Section 8. Quorum. The holders of a majority of the capital stock issued
and outstanding and entitled to a vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the holder of a majority of such
shares entitled to vote thereat, present in person or represented by proxy,
shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
(30) days, or if after 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.
Section 9. Voting at Meetings of Stockholders. When a quorum is present
at any meeting, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the Certificate of Incorporation, a different
vote is required, in which case such express provision shall govern and control
the decision of such question.
Section 10. Vote in Person or by Proxy. Each stockholder shall at every
meeting of the stockholders be entitled to one (1) vote in person or by proxy
for each share of the capital stock
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having voting power held by such stockholder, but no proxy shall be voted on
after three (3) years from its date, unless the proxy provides for a longer
period.
Section 11. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required or permitted
by the provisions of the statutes or of the Certificate of Incorporation 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 such
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
DIRECTORS
Section 1. Number and Qualifications. Three (3) directors shall
constitute the Board of Directors. Thereafter, the number of directors which
shall constitute the whole Board shall be determined by resolution of the Board
of Directors. Directors need not be shareholders.
Section 2. Election and Vacancies. At each annual meeting, the
stockholders shall elect by ballot the members of the Board of Directors. Each
person appointed by the Incorporator as a director shall hold office until the
first annual meeting of the stockholders or until his successor shall have been
elected by the stockholders, unless he shall have been removed by the
stockholders. Each director elected thereafter shall hold office for a term of
one (l) year and thereafter until his successor shall have been elected and
qualified, unless he shall be removed by action of the stockholders. Whenever
any vacancy on the Board of Directors shall occur for any reason, a majority of
the remaining directors then in office, even if that majority is less than a
majority of the entire Board of Directors, may fill the vacancy or vacancies so
created until a successor or successors shall be duly elected by the
stockholders and shall qualify.
Section 3. Power to Manage Corporation. The business of the Corporation
shall be managed by its Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these Bylaws directed or required to
be exercised or done by the stockholders.
Section 4. Creation of Committees. The Board of Directors may by
resolution passed by a majority of the Board create one or more committees, each
committee to consist of one or more directors of the Corporation. To the extent
provided by the Board of Directors, each committee may exercise all the powers
and authority of the Board so granted and may authorize the seal of the
Corporation to be affixed to all papers which so require. However, the
committee(s) may not be empowered to amend the Certificate of Incorporation or
the Bylaws of the Corporation, adopt an agreement of consolidation or merger,
recommend to the stockholders the sale, lease, or
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exchange of all or substantially all of the Corporation's assets, recommend to
the stockholders a dissolution or revocation of dissolution, declare a dividend,
or authorize the issuance of stock. In the absence or disqualification of a
member of a committee, the member(s) thereof present at the meeting and
qualified to vote, whether or not those present constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of the absent or disqualified member.
Section 5. Place of Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
Section 6. Organization Meeting. The first meeting of each newly elected
Board of Directors shall be held at the same place and immediately after the
annual meeting of stockholders, and no notice of such meeting shall be necessary
to the newly elected directors in order legally to constitute the meeting,
provided a quorum shall be present. In the event such meeting is not held at
such time and place, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 7. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board, but not less often than annually.
Section 8. Special Meetings. Special meetings of the Board may be called
by the president or chairman of the Board of Directors on one (1) day's notice
to each director; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of a majority of the
directors.
Section 9. Telephonic Meetings. Members of the Board of Directors may
participate in any regular or special meeting of the Board of Directors, or of
any committee of the Board, 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
9 will constitute presence in person at such meeting.
Section 10. Quorum. At all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 11. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members
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of the Board or such committee, as the case may be, consent thereto in writing
and such written consent is filed with the minutes of proceedings of the Board
or committee.
ARTICLE IV
NOTICES
Section 1. Notice to Stockholders. Notices to stockholders shall be in
writing and delivered, mailed or telecopied to the stockholders at their
addresses on the books of the Corporation. Notice by mail shall be deemed to be
given at the time when the same shall be mailed, postage prepaid. Notice given
by telecopy shall be deemed to be given at the time the telecopy is dispatched.
Section 2. Notice to Directors. Notices to directors may be oral or
written, and if in writing must be delivered, mailed or telecopied to the
directors at their addresses appearing on the books of the Corporation. Notice
given by mail shall be deemed to be given at the time when the same shall be
mailed. Notice given by telecopy shall be deemed to be given at the time the
telecopy is dispatched. Notice may be given by telephone.
Section 3. Written Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. Officers Shall be Chosen by Directors. The officers of the
Corporation shall be elected by the Board of Directors and shall be a president
and a secretary. The Board of Directors may also choose a Chairman of the Board
of Directors, vice presidents, a treasurer, assistant secretaries and assistant
treasurers. Two (2) or more offices may be held by the same person.
Section 2. Election at Directors' Organization Meeting. The Board of
Directors at its first meeting and thereafter at its first meeting after each
annual meeting of stockholders shall elect a president and a secretary.
Section 3. Appointment of Other Officers. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
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Section 4. Compensation. The compensation of all officers and agents of
the Corporation shall be fixed by the Board of Directors.
Section 5. Tenure. The officers of the Corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the Board of Directors may be removed at any time by the affirmative vote of
a majority of the members of the Board of Directors. Any vacancy occurring in
any office of the Corporation shall be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board shall be the
chief executive officer of the Corporation and shall preside at all meetings of
the stockholders. The Chairman of the Board shall see that all orders and
resolutions of the Board of Directors are carried into effect and shall have
such authority and perform such duties as are normally exercised and performed
by the chief executive officer of a corporation. The Chairman of the Board shall
sign or countersign or authorize others to sign certificates, contracts and
other instruments of the Corporation. The Chairman of the Board shall have the
authority assigned herein to a treasurer unless the Board of Directors elects a
treasurer. In the absence of direction by the Board of Directors to the
contrary, the Chairman of the Board shall have the power to vote all securities
held by the Corporation and to issue proxies therefor.
Section 7. President. The president shall have general and active
management of the business of the Corporation. The president shall also perform
such duties as are delegated to him by the Chairman of the Board and the Board
of Directors.
Section 8. Vice President. A vice president shall have such powers and
perform such duties as may be assigned by the Board of Directors or the
president. In the absence or disability of the president, the vice president
designated by the Board of Directors or the president shall perform the duties
and exercise the powers of the president.
Section 9. The Secretary. The secretary shall be under the supervision
of the Board of Directors. The secretary shall attend all meetings of the Board
of Directors and all meetings of the shareholders and record all the proceedings
of the meetings of the shareholders and of the Board of Directors in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. The secretary shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or president. The secretary shall have custody of the corporate
seal of the Corporation and the secretary, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed
it may be attested by the signature of the secretary or of such assistant
secretary. The Board of Directors may give general authority to any other
officer or committee to affix the seal of the Corporation and to attest the
affixing by his signature.
Section 10. Assistant Secretaries. An assistant secretary shall, in the
absence or disability of the secretary, perform the duties and exercise the
powers of the secretary and shall
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perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 11. The Treasurer. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all transactions as treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the treasurer shall give the Corporation
a bond, in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of the office
and for the restoration to the Corporation, in case of the death, resignation,
retirement or removal from office of the treasurer, of all books, papers,
vouchers, money and other property of whatever kind in the possession of or
under the control of the treasurer belonging to the Corporation.
Section 12. Assistant Treasurer. An assistant treasurer shall, in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe. If required by
the Board of Directors, the assistant treasurer shall give the Corporation a
bond, in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of the office
and for the restoration to the Corporation, in case of the death, resignation,
retirement or removal from office of the assistant treasurer, of all books,
papers, vouchers, money and other property of whatever kind in the possession of
or under the control of the assistant treasurer belonging to the Corporation.
Section 13. Delegation of Power. In case of absence of any officer of
the Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board may delegate the powers or duties of such officer to any
other officer, director, or committee for the time being, provided a majority of
the entire Board concurs therein.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificate of Stock. 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 president or a vice president and the secretary or an
assistant secretary of the Corporation certifying the number of shares owned by
him in the Corporation. Any or all of the foregoing signatures may be facsimile.
Section 2. Fixing Record Date. The Board of Directors may fix in advance
a date not exceeding sixty (60) nor less than ten (10) days preceding the date
of any meeting of
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stockholders, and not exceeding sixty (60) days preceding the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining the consent of stockholders for any
purpose, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting, and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, or to give such consent, and in such case such
stockholders and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividends, or
to receive such allotment of rights, or to exercise such rights, or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
Section 3. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
Section 4. Issuance of New Stock. The Corporation shall not have
authority to issue additional stock or bonds, notes or debentures convertible
into stock, or warrants or rights to subscribe to stock except in the quantity
and amount approved and to the person or persons to whom issuance is approved by
the affirmative vote of a majority of the members of the Board of Directors of
the Corporation, or by the affirmative vote of the holders of a majority of the
common stock outstanding.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, may
be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of the
capital stock.
Section 2. Seal. Any seal of the Corporation may be used by causing it
or a facsimile thereof to be impressed or affixed or otherwise reproduced.
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ARTICLE VIII
AMENDMENTS
Section 1. Amendments. These Bylaws may be made, altered, amended or
repealed, subject to the provisions of the Certificate of Incorporation, at any
regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of
such making, alteration, amendment or repeal be contained in the notice of such
special meeting.
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