Exhibit 3.8
HISIP CORP.
BYLAWS
Adopted as of July 29, 2002
BYLAWS
OF
HISIP Corp.
(the "Corporation")
ARTICLE 1
OFFICES AND AGENT
1.1. Registered Office and Agent
The Corporation shall maintain, in the state of Delaware, a registered
agent, which agent may be (i) the Corporation itself, (ii) an individual who
resides in the state of Delaware, (iii) a domestic corporation (other than the
Corporation itself), a domestic limited partnership, a domestic limited
liability company or a domestic business trust, or (iv) a foreign corporation, a
foreign limited partnership or a foreign limited liability company authorized to
transact business in Delaware, in each case, having a business office identical
with the office of the registered agent which generally is open during normal
business hours to accept service of process and otherwise perform the functions
of a registered agent.
1.2. Offices
The Corporation may have offices in the Commonwealth of the Bahamas or
at such other places as the Corporation's board of directors ("Board of
Directors") may from time to time determine or as may be necessary or useful in
connection with the business of the Corporation.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
2.1. Annual Meetings
Unless directors are elected by written consent in lieu of an annual
meeting as permitted by Section 211 (b) of the Delaware General Corporation Law,
the Corporation shall hold annual meetings of stockholders on such date and at
such time as shall be designated from time to time by the Board of Directors, at
which stockholders shall elect directors and transact such other business as may
properly be brought before the meeting.
2.2. Special Meetings
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the Board of Directors
or the President.
2.3. Place of Meetings
All meetings of the stockholders shall be held within the Commonwealth
of the Bahamas, unless otherwise directed by the Board of Directors, at such
place as may be fixed from time to time by the Board of Directors, the Chairman
of the Board or the President.
2.4. Notice of Meetings
Notice of any meeting of stockholders, stating the place, date and hour
of the meeting, and (if it is a special meeting) the purpose or purposes for
which the meeting is called, shall be given to each stockholder entitled to vote
at such meeting not less than 10 nor more than 60 days before the date of the
meeting (except to the extent that such notice is waived or is not required by
the Delaware General Corporation Law or these Bylaws). Such notice shall be
given in accordance with, and shall be deemed effective as set forth in, Section
222 (or any successor section) of the Delaware General Corporation Law.
2.5. Quorum at Meetings
Stockholders may take action on a matter at a meeting only if a quorum
exists with respect to that matter. Except as otherwise provided by statute or
by the certificate of incorporation, the holders of a majority of the shares
entitled to vote at the meeting, and who are present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. Where a separate vote by a class or classes is
required, the holders of a majority of the outstanding shares of such class or
classes, who are present in person or represented by proxy, shall constitute a
quorum entitled to take action on that matter. Once a share is represented for
any purpose at a meeting (other than solely to object (a) to holding the meeting
or transacting business at the meeting, or (b) (if it is a special meeting) to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice), it is deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for the adjourned meeting.
The holders of a majority of the voting shares represented at a meeting, whether
or not a quorum is present, may adjourn such meeting from time to time.
2.6. Vote Required for Action
When a quorum is present at any meeting of stockholders, all matters
shall be determined, adopted and approved by the affirmative vote (which need
not be by ballot) of the holders of a majority of the shares present in person
or represented by proxy at the meeting and entitled to vote with respect to the
matter, unless the proposed action is one upon which, by express provision of
statute or the certificate of incorporation, a different vote is specified and
required, in which case such express provision shall govern and control the
decision of such question. Where a separate vote by a class or classes is
required and a quorum exists with respect to such class or classes, the
affirmative vote of
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the holders of a majority of the shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class,
unless the proposed action is one upon which, by express provision of statute or
the certificate of incorporation, a different vote is specified and required, in
which case such express provision shall govern and control the decision of such
question.
2.7. Voting for Directors
Notwithstanding the foregoing, directors shall be elected by a plurality
of the votes of the shares present in person or represented by proxy at the
meeting and entitled to vote on the election of directors. Stockholders may,
unless the certificate of incorporation otherwise provides, act by written
consent to elect directors in accordance with the provisions of Section 211(b)
of the Delaware General Corporation Law.
2.8. Voting and Proxies
Unless otherwise provided in the Delaware General Corporation Law or in
the certificate of incorporation, and subject to the other provisions of these
Bylaws, each stockholder shall be entitled to one vote on each matter, in person
or by proxy, for each share of the Corporation's capital stock that has voting
power and that is held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period. A duly executed appointment of proxy shall be irrevocable if the
appointment form states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
2.9. Organization and Procedure
The President of the Corporation shall preside over every stockholders'
meeting unless the Board of Directors elect another person to preside. The
presiding officer will appoint any persons he or she deems necessary to help
with the meeting. The corporate secretary shall have responsibility for
preparing minutes of stockholders' meetings and for authenticating records of
the Corporation.
2.10. Adjournments
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. If the adjournment is for more
than 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.
2.11. Action by Stockholders without a Meeting
Any action required or permitted to be taken at a stockholders' meeting
may be taken without a meeting, without prior notice and without a vote, if the
action is taken by
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persons who would be entitled to vote at a meeting and who hold shares having
voting power not less than the minimum number of votes that would be necessary
to authorize or take the action at a meeting at which all stockholders entitled
to vote were present or represented by proxy and voted. The action must be
evidenced by one or more written consents describing the action taken, signed by
the stockholders entitled to take action without a meeting, and delivered to the
Corporation in the manner prescribed by the Delaware General Corporation Law for
inclusion in the minute book. No consent shall be effective to take the
corporate action specified unless the number of consents required to take such
action are delivered to the Corporation within sixty days of the delivery of the
earliest-dated consent. All stockholders entitled to vote on the record date of
such written consent who do not participate in taking the action shall be given
written notice thereof in accordance with the Delaware General Corporation Law.
ARTICLE 3
DIRECTORS
3.1. General Powers
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the certificate of incorporation or as otherwise may be
provided in the Delaware General Corporation Law. The Board of Directors may
elect a Chairman of the Board from among its members and shall designate, when
present, either the Chairman of the Board (if any) or the President to preside
at its meetings. If neither the Chairman of the Board nor the President is
present, the Board of Directors may designate another director to preside at
such meeting. The Chairman of the Board and the President may be the same
person. The Board of Directors may also elect one or more Vice Chairmen from
among its members, with such duties as the Board of Directors shall from time to
time prescribe.
3.2. Number
The number of directors constituting the Board of Directors shall be as
authorized from time to time by resolution of the stockholders or of the Board
of Directors. Directors need not be stockholders.
3.3. Term and Resignation
(a) Directors shall be elected at annual meetings of the
stockholders or pursuant to a written consent of stockholders in lieu of an
annual meeting as permitted by Section 211 (b) of the Delaware General
Corporation Law, except as provided in Section 3.5 hereof, and each director
elected shall hold office until his or her successor is elected and qualified or
until his or her earlier death, resignation or removal.
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(b) A director may resign at any time by giving written notice to
the Board of Directors or the Corporation. Unless otherwise stated in such
notice of resignation, the acceptance thereof shall not be necessary to make it
effective; and such resignation shall take effect at the time specified therein
or, in the absence of such specification, it shall take effect upon the receipt
thereof.
3.4. 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.
3.5. Vacancies
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by the affirmative vote of
directors having a majority of the total votes of the directors then in office,
although fewer than a quorum, or by a sole remaining director. Each director so
chosen shall hold office until his or her successor is elected and qualified or
until his or her earlier death, resignation or removal. In the event that one or
more directors resigns from the Board, effective at a future date, directors
having a majority of the total votes of 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 until his or her
successor is elected and qualified or until his or her earlier death,
resignation or removal.
3.6. Compensation
The Board of Directors shall have the authority to fix the compensation
of directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
3.7. Committees
The Board of Directors may, by resolution passed by the affirmative vote
of directors having a majority of the total votes of the total number of
directors constituting the entire Board of 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. In the absence or disqualification of a member of a
committee, the members present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the board of directors, or in these Bylaws
of the Corporation, shall have and may exercise all the powers and authority of
the Board of Directors in the management of
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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 the following
matter: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the Delaware General Corporation Law to
be submitted to stockholders for approval or (ii) adopting, amending or
repealing any Bylaws of the Corporation.
ARTICLE 4
MEETINGS OF THE BOARD OF DIRECTORS
4.1. 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 of Directors; provided that unless otherwise directed by the Board of
Directors, such meetings shall be held within the Commonwealth of the Bahamas. A
meeting of the Board of Directors for the election of officers and the
transaction of such other business as may come before it may be held without
notice immediately following the annual meeting of stockholders.
4.2. Special Meetings
The Board of Directors shall hold a special meeting upon the call of the
President or any two directors. Special meetings shall be held at the place set
forth in the notice of the meeting or, if the special meeting is held in
accordance with a waiver of notice of the meeting, at the place set forth in the
waiver of notice; provided that unless otherwise directed by the Board of
Directors, such meetings shall be held within the Commonwealth of the Bahamas.
4.3. Notice of Meetings
Regular meetings of the Board of Directors may be held without further
notice at such time and at such place as shall from time to time be determined
by the Board of Directors; provided that unless otherwise directed by the Board
of Directors, such meetings shall be held within the Commonwealth of the
Bahamas. A meeting of the Board of Directors for the election of officers and
the transaction of such other business as may come before it may be held without
notice immediately following the annual meeting of stockholders. The Corporation
shall, however, give at least one day's prior notice of the date, time, and
place of a special meeting of the Board of Directors. The notice of the special
meeting shall state the general purpose of the meeting, but other routine
business may be conducted at the special meeting without such matter being
stated in the notice.
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4.4. Quorum
At all meetings of the Board of Directors, a quorum of the Board of
Directors consists of the presence of directors having at least a majority of
the total votes of the total number of directors constituting the entire Board
of Directors.
4.5. Vote Required for Action
(a) The affirmative vote of directors having a majority of the
total votes of 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, the certificate of incorporation or these Bylaws.
(b) A director who is present at a meeting of the Board of
Directors or a committee of the Board of Directors when corporate action is
taken is deemed to have assented to the action taken unless:
(i) he or she objects at the beginning of the meeting (or
promptly upon his or her arrival) to holding it or transacting business
at the meeting;
(ii) his or her dissent or abstention from the action taken
is entered in the minutes of the meeting; or
(iii) he or she delivers written notice of his or her dissent
or abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of the
meeting.
The right to dissent or abstain is not available to a director who votes in
favor of the action taken.
4.6. Participation by Conference Telephone
Members of the Board of Directors may participate in a meeting of the
Board of Directors by any communication by means of which all participating
directors can hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
4.7. Adjournments
Whether or not a quorum is present to conduct a meeting, any meeting of
the Board of Directors (including an adjourned meeting) may be adjourned by a
majority of the directors present, to reconvene at a specific time and place. It
shall not be necessary to give to the directors present at the adjourned meeting
notice of the reconvened meeting or of the business to be transacted, other than
by announcement at the meeting that was adjourned; provided, however, notice of
such reconvened meeting, stating the date, time,
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and place of the reconvened meeting, shall be given to the directors not present
at the adjourned meeting in accordance with the requirements of Section 4.4
hereof.
4.8. Action by Directors without Meeting
Any action required or permitted to be taken at any meeting of the Board
of Directors (or a committee of the Board of Directors) may be taken without a
meeting if the action is taken by all members of the Board of Directors (or the
committee, as the case may be). The action must be evidenced by one or more
consents in writing, or by electronic transmission (including email
transmissions), describing the action taken, signed by each director (or each
director serving on the committee, as the case may be), and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records.
Such filings shall be in paper form if the minutes are maintained in paper form
and shall be in electronic form if the minutes are maintained in electronic
form.
ARTICLE 5
MANNER OF NOTICE TO AND WAIVER OF NOTICE
BY STOCKHOLDERS AND DIRECTORS
5.1. Manner of Notice
If mailed, notice is given when deposited in the Bahamian mail, postage
prepaid, directed to the stockholder at such stockholder's address, or to the
director at the director's address, as it appears on the records of the
Corporation. An affidavit of the secretary or assistant secretary or of the
transfer agent of the Corporation that notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
5.2. Waiver of Notice
(a) Stockholders. Whenever the giving of any notice is required by
statute, the certificate of incorporation of the Corporation (which shall
include any amendments thereto) or these Bylaws, a waiver thereof, in writing
and delivered to the Corporation, signed by the person or persons entitled to
said notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice (a) of such meeting, except when the
stockholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (b) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder
objects to considering the matter at the beginning of the meeting.
(b) Directors. A director may waive any notice required by statute,
the certificate of incorporation or these Bylaws before or after the date and
time stated in the notice. Except as set forth below, the waiver must be in
writing, signed by the director entitled to the notice, and delivered to the
Corporation for inclusion in the minute book.
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Notwithstanding the foregoing, a director's attendance at or participation in a
meeting waives any required notice to the director of the meeting unless the
director at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
ARTICLE 6
OFFICERS
6.1. Number and Duties
The officers of the Corporation shall be a President, a Secretary and a
Treasurer. The Board of Directors may elect or appoint, or provide for the
appointment of, such other officers (including a Chairman of the Board, one or
more Vice Chairmen, a Chief Financial Officer, one or more Vice Presidents in
such gradation as the Board of Directors may determine, one or more Assistant
Secretaries and one or more Assistant Treasurers) or agents as may from time to
time appear necessary or advisable in the conduct of the business and affairs of
the Corporation. Each such officer shall exercise such powers and perform such
duties as shall be set forth below and such other powers and duties as from time
to time may be specified by the Board of Directors or by any officer(s)
authorized by the Board of Directors to prescribe the duties of such other
officers. Any number of offices may be held by the same person. Each of the
Chairman of the Board (if any), the President, the Chief Financial Officer (if
any), any Vice President, and/or any other officer of the Corporation may
execute bonds, mortgages, notes, contracts and other documents on behalf of the
Corporation, except as otherwise required by law and except where the execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
6.2. Appointment and Term
All officers shall be appointed by the Board of Directors or by a duly
appointed officer in accordance with this Article 6 and shall serve at the
pleasure of the Board of Directors or the appointing officers, as the case may
be. All officers, however appointed, may be removed with or without cause by the
Board of Directors and any officer appointed by another officer may also be
removed by the appointing officer with or without cause.
6.3. Compensation
The compensation of officers of the Corporation shall be fixed by the
Board of Directors or by any officer(s) authorized by the Board of Directors to
prescribe the compensation of such other officers.
6.4. Chairman of the Board
The Chairman of.the Board, if any, shall (when present) preside at all
meetings of the Board of Directors and stockholders and shall ensure that all
orders and resolutions of
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the Board of Directors are carried into effect. The Chairman of the Board, if
any, shall in general perform all duties incident to such office, including
those duties customarily performed by persons holding such office, and shall
perform such other duties as, from time to time, may be assigned to him or her
by the Board of Directors.
6.5. President
The President shall be the chief executive officer of the Corporation
and as such shall have overall executive responsibility and authority for
management of the business, affairs and operations of the Corporation (subject
to the authority of the Board of Directors), and, in general, shall perform all
duties incident to the office of a president and chief executive officer of a
corporation, including those duties customarily performed by persons holding
such offices, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors.
6.6. Chief Financial Officer
The Chief Financial Officer of the Corporation, if any, shall have
general charge and supervision of the financial affairs of the Corporation,
including budgetary, accounting and statistical methods, and shall approve for
payment, or designate others serving under him or her to approve for payment,
all vouchers and warrants for disbursements of funds, and, in general, shall
perform such other duties as are incident to the office of a chief financial
officer of a corporation, including those duties customarily performed by
persons occupying such office, and shall perform such other duties as, from time
to time, may be assigned to him or her by the Board of Directors or the
President.
6.7. Vice President
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President. The Vice President
or Vice Presidents, in general, shall perform such other duties as are incident
to the office of a vice president of a corporation, including those duties
customarily performed by persons occupying such office, and shall perform such
other duties as, from time to time, may be assigned to him or her or them by the
Board of Directors or the President. The Board of Directors may designate one or
more Vice Presidents as Executive Vice Presidents or Senior Vice Presidents.
6.8. Secretaryv
The Secretary, or an Assistant Secretary, shall attend all meetings of
the Board of Directors and all meetings of the stockholders, and shall record
all the proceedings of the meetings of the stockholders 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
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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 by the signature of such Assistant Secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by such officer's signature.
The Secretary or an Assistant Secretary may also attest all instruments signed
by the President, the Chief Financial Officer or any Vice President. The
Secretary, or an Assistant Secretary, shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and, in general, shall perform all duties as are incident to the
office of a secretary of a corporation, including those duties customarily
performed by persons occupying such office, and shall perform such other duties
as, from time to time, may be assigned to him or her by the Board of Directors,
the President, the Chief Financial Officer or any Vice President.
6.9. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act or when requested by the Chairman of the Board, the President,
the Chief Financial Officer or any Vice President, perform the duties and
exercise the powers of the Secretary, and, in general, shall perform all duties
as are incident to the office of an assistant secretary of a corporation,
including those duties customarily performed by persons holding such office, and
shall perform such other duties as, from time to time, may be assigned to him or
her or them by the Board of Directors, the President, the Chief Financial
Officer, any Vice President or the Secretary. An Assistant Secretary may or may
not be an officer, as determined by the Board of Directors.
6.10. Treasurer
The Treasurer shall have responsibility for 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 also render to the President, upon request, and to the Board
of Directors at its regular meetings, or when the Board of Directors so
requires, an account of all financial transactions and of the financial
condition of the Corporation and, in general, shall perform such duties as are
incident to the office of a treasurer of a corporation, including those
customarily performed by persons occupying such office, and shall perform all
other duties as, from time to time, may be assigned to him or her by the Board
of Directors, the President, the Chief Financial Officer or any Vice President.
6.11. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or if
there shall have been no such
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determination, then in the order of their election), shall, in the absence of
the Treasurer or in the event of the Treasurer's inability or refusal to act,
perform the duties and exercise the powers of the Treasurer, and, in general,
shall perform all duties as are incident to the office of an assistant treasurer
of a corporation, including those duties customarily performed by persons
occupying such office, and shall perform such other duties as, from time to
time, may be assigned to him or her or them by the Board of Directors, the
President, the Chief Financial Officer, any Vice President or the Treasurer. An
Assistant Treasurer may or may not be an officer, as determined by the Board of
Directors.
6.12. Bonds
The Board of Directors by resolution may require any or all of the
officers, agents, or employees of the Corporation to give bonds to the
Corporation, with sufficient surety or sureties, conditioned on the faithful
performance of the duties of their respective offices or positions, and to
comply with any other conditions that from time to time may be required by the
Board of Directors.
ARTICLE 7
CAPITAL STOCK
7.1. Authorization and Issuance of Shares
The directors may, at any time and from time to time, if all of the
shares of capital stock which the Corporation is authorized by its certificate
of incorporation to issue have not been issued, subscribed for, or otherwise
committed to be issued, issue or take subscriptions for additional shares of its
capital stock up to the amount authorized in its certificate of incorporation.
7.2. Stock Certificates
The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution that some or all
of any or all classes or series of the Corporation's stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates, and upon request every holder
of uncertificated shares, shall be entitled to have a certificate (representing
the number of shares registered in certificate form) signed in the name of the
Corporation by the President or any Vice President, and by the Treasurer or the
Secretary of the Corporation. Any or all the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar whose signature
or facsimile signature appears on 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 such person were such
officer, transfer agent or registrar at the date of issue.
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7.3. Registered Owner
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, to
receive notifications, to vote as such owner, and to exercise all the rights and
powers of an owner. The Corporation 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 may be required by the Delaware General Corporation Law.
7.4. Transfer of Shares
The Board of Directors may appoint, or authorize any officer or officers
to appoint, one or more transfer agents and one or more registrars. The Board of
Directors shall make such further rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates of the
Corporation.
7.5. Lost, Stolen or Destroyed Certificates
The Board of Directors, the President, or the Secretary may direct a new
certificate of stock to be issued in place of any certificate theretofore issued
by the Corporation and alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming that the certificate
of stock has been lost, stolen or destroyed. When authorizing such issuance of a
new certificate, the Board of Directors or any such officer may, as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or such owner's legal representative, to
advertise the same in such manner as the Board of Directors or such officer
shall require and/or to give the Corporation a bond or indemnity, in such sum or
on such terms and conditions as the Board of Directors or such officer may
direct, as indemnity against any claim that may be made against the Corporation
on account of the certificate alleged to have been lost, stolen or destroyed or
on account of the issuance of such new certificate.
7.6. Record Date with Regard to Stockholder Action
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders, 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 days 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 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,
unless the Board of Directors fixes a new record date for the adjourned meeting.
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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 record 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 at the close of business on the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
Section 213(b) of the Delaware General Corporation Law. 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.
ARTICLE 8
DISTRIBUTIONS
8.1. Authorization or Declaration
The Board of Directors, or any such committee designated by the Board
of Directors, may declare dividends upon the capital stock of the Corporation,
subject to the provisions of the certificate of incorporation and the laws of
the state of Delaware.
8.2. Record Date with Regard to Distributions
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.
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ARTICLE 9
INDEMNIFICATION
9.1. Definitions
As used in this Article, the term:
(a) "Corporation" includes any domestic or foreign predecessor
entity of the corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(b) "Director" or "officer" means an individual who is or was a
director or board-appointed officer, respectively, of the Corporation or who is
or was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another domestic or foreign corporation,
partnership, joint venture, trust, employee benefit plan or other entity. A
director or officer is considered to be serving an employee benefit plan at the
Corporation's request if his or her duties to the Corporation also impose duties
on, or otherwise involve services by, the director or officer to the plan or to
participants in or beneficiaries of the plan. "Director" or "officer" includes,
unless the context otherwise requires, the estate or personal representative of
a director or officer.
(c) "Disinterested director" means a director who at the time of
a vote referred to in subsection 9.5(b) is not:
(i) a party to the proceeding; or
(ii) a person having a familial, financial, professional or
employment relationship with the person whose indemnification or
advance for expenses is the subject of the decision being made with
respect to the proceeding, which relationship would, in the
circumstances, reasonably be expected to exert an influence on the
director's judgment when voting on the decision being made.
(d) "Expenses" includes all reasonable counsel fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or
otherwise participating in, a proceeding.
(e) "Independent legal counsel" shall mean a law firm, or a
member of a law firm, that is experienced in matters of corporation law and
neither at the time of retention is, nor in the five years preceding the date of
such retention has been, retained to represent (i) the Corporation or the
proposed indemnitee in any matter material to either such party or (ii) any
other party to the proceeding giving rise to a claim for indemnification under
this Article. Notwithstanding the foregoing, the term "independent legal
counsel" shall not include any person who, under the applicable standards of
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professional conduct then prevailing, would have a conflict of interest in
representing either the corporation or the proposed indemnitee in an action to
determine the proposed indemnitee's rights under this Article.
(f) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to an
employee benefit plan) or reasonable expenses incurred with respect to a
proceeding.
(g) "Party" includes an individual who was, is, or is threatened
to be made a named defendant of respondent in a proceeding.
(h) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative and whether formal or informal.
9.2. Basic Indemnification Arrangement
(a) Except as provided in subsection 9.2(d), the Corporation shall
indemnify an individual who is a party to a proceeding because he or she is or
was a director or officer against liability incurred in the proceeding if:
(i) such individual acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best
interests of the Corporation; and
(ii) with respect to any criminal proceeding, he or she had
no reasonable cause to believe such conduct was unlawful.
(b) A director's or officer's good faith conduct with respect to an
employee benefit plan for a purpose he or she reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection 9.2(a)(i).
(c) The termination of a proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption or be determinative that the director or officer
did not meet the standard of conduct described in subsection 9.2(a).
(d) Unless ordered by a court pursuant to Section 9.4, the
Corporation may not indemnify a director or officer under this Article:
(i) in connection with a proceeding by or in the right of
the Corporation to procure a judgment in its favor, except for
reasonable expenses incurred in connection with the proceeding if it is
determined that the director or officer has met the relevant standard
of conduct under subsection 9.2(a); or
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(ii) in connection with any proceeding by or in the right of
the Corporation to procure a judgment in its favor with respect to any
claim, issue or matter as to which such person shall have been adjudged
liable to the Corporation.
9.3. Advances for Expenses
(a) The Corporation shall, before final disposition of a proceeding,
advance funds to pay for or reimburse the reasonable expenses incurred by a
director or officer who is a party to a proceeding because he or she is a
director or officer if he or she delivers to the Corporation a written
undertaking to repay any funds advanced if it is ultimately determined that the
director or officer is not entitled to indemnification under this Article, the
Delaware General Corporation Law or otherwise.
(b) The undertaking required by subsection 9.3(a) must be an
unlimited general obligation of the director or officer but need not be secured
and may be accepted without reference to the financial ability of the director
or officer to make repayment.
9.4. Court-Ordered Indemnification and Advances for Expenses
(a) A director or officer who is a party to a proceeding because he
or she is a director or officer may apply for indemnification or advance for
expenses to the court conducting the proceeding or to the Delaware Court of
Chancery. After receipt of an application and after giving any notice it
considers necessary, the court may:
(i) order indemnification or advance for expenses if it
determines that the director or officer is entitled to indemnification
or to advance for expenses under this Article, the Delaware General
Corporation Law or otherwise; or
(ii) order indemnification or advance for expenses if it
determines, in view of all the relevant circumstances, that it is fair
and reasonable to indemnify the director or officer, or to advance
expenses to the director or officer, regardless of whether the director
or officer has met the relevant standard of conduct, complied with the
requirements for advancement of expenses, or been adjudged liable in a
proceeding referred to in subsection 9.2(d), but if the director or
officer was adjudged so liable, the indemnification shall be limited to
reasonable expenses incurred in connection with the proceeding.
(b) If the court determines that the director or officer is entitled
to indemnification or advance for expenses, it may also order the Corporation to
pay the director's or officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
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9.5. Determination and Authorization of Indemnification
(a) The Corporation acknowledges that indemnification of a director
or officer under Section 9.2 has been pre-authorized by the Corporation.
Nevertheless, the Corporation shall not indemnify a director or officer under
Section 9.2 unless a determination has been made for the specific proceeding
that indemnification of the director or officer is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in subsection 9.2(a); provided, however, that regardless of the result or
absence of any such determination, the Corporation shall indemnify a director or
officer who was successful, on the merits or otherwise, in the defense of any
proceeding to which he or she was a party because he or she was a director or
officer of the Corporation, or in defense of any claim, issue or matter therein,
against reasonable expenses incurred by the director or officer in connection
with the proceeding.
(b) The determination referred to in subsection 9.5(a) shall be
made:
(i) by a majority vote of the disinterested directors,
even though less than a quorum; or
(ii) by a majority vote of a committee of disinterested
directors, which committee shall be designated by a majority vote of
the disinterested directors, even though less than a quorum of the
Board of Directors; or
(iii) if there are no disinterested directors, or if the
disinterested directors so direct, by independent legal counsel in a
written opinion; or
(iv) by the stockholders.
9.6. Non-Exclusivity
The right to indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be exclusive of any other rights to
which a director or officer may be entitled under the certificate of
incorporation of the Corporation, any other Bylaw provision, any agreement, vote
of the stockholders or disinterested directors or otherwise, both as to actions
in such person's official capacity and as to action in any other capacity while
holding such office.
9.7. Indemnification of Employees and Agents
The Corporation may indemnify and advance expenses under this Article to
an employee or agent of the Corporation who is not a director or officer to the
same extent and subject to the same conditions that a Delaware corporation
could, without shareholder approval under the Delaware General Corporation Law,
indemnify and advance expenses to a director or officer, or to any lesser extent
(or greater extent if permitted by law) determined by the Board of Directors, in
each case consistent with public policy.
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9.8. Insurance
The Corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee or agent of the
Corporation or who is or was serving at the Corporation's request as a director,
officer, partner, trustee, employee or agent of another domestic or foreign
corporation, partnership, joint venture, trust, employee benefit plan or other
entity against liability asserted against or incurred by him or her in that
capacity or arising from his or her status as such, whether or not the
corporation would have power to indemnify or advance expenses to him or her
against the same liability under this Article or the Delaware General
Corporation Law.
9.9. Witness Fees
Nothing in this Article shall limit the Corporation's power to pay or
reimburse expenses incurred by a director or officer in connection with his or
her appearance as a witness in a proceeding involving the Corporation at a time
when he or she is not a party.
9.10. Amendments; Severability
No amendment, modification or rescission of this Article 9, or any
provision hereof, the effect of which would diminish the rights to
indemnification or advancement of expenses as set forth herein shall be
effective as to any person with respect to any action taken or omitted by such
person prior to such amendment, modification or rescission. In the event that
any of the provisions of this Article (including any provision within a single
section, subsection, division or sentence) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions of this Article shall remain enforceable to the fullest extent
permitted by law.
ARTICLE 10
MISCELLANEOUS
10.1. Inspection of Books and Records
Any stockholder, in person or by attorney or other agent, shall upon
written demand under oath stating the purpose thereof, have the right during
usual business hours to inspect for any proper purpose the Corporation's stock
ledger, a list of its stockholders, and its other books and records, and to make
copies or extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance where an
attorney or other agent 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 or at its principal place of business.
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10.2. Fiscal Year
The Board of Directors is authorized to fix the fiscal year of the
Corporation and to change the same from time to time as it deems appropriate.
10.3. Corporate Seal
The corporate seal shall be in such form as the Board of Directors shall
approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
10.4. Conflict with Certificate of Incorporation
In the event that any provision of these Bylaws conflicts with any
provision of the certificate of incorporation, the provision in the certificate
of incorporation will govern.
10.5. Reserves
The directors of the Corporation may set apart, out of the funds of the
Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve
10.6. Execution of Instruments
All checks, drafts or other orders for the payment of money, and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
10.7. Pronouns
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the person
or entity may require .
ARTICLE 11
AMENDMENTS
The Board of Directors may amend or repeal the Bylaws or adopt new
bylaws unless the certificate of incorporation or the Delaware General
Corporation Law reserves this power exclusively to the stockholders or unless
the stockholders in amending or repealing a particular bylaw provide expressly
that the Board of Directors may not amend or repeal such bylaw. The stockholders
may amend or repeal the bylaws or adopt new bylaws even though the Bylaws may
also be amended or repealed by the Board of Directors. In amending or repealing
Bylaws or adopting new bylaws, the Board of Directors and the stockholders shall
comply with any other applicable provisions of the Delaware General Corporation
Law.
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IN WITNESS WHEREOF, the foregoing Bylaws were adopted by the Board of
Directors on July 29, 2002.
HISIP CORP.
By: /s/ Randolph L.M. Hutto
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Name: Randolph L.M. Hutto
Title: President
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