BYLAWS
OF
PIONEER CAPITAL ASSOCIATES, INC.
A DELAWARE CORPORATION
TABLE OF CONTENTS.............................................Page
ARTICLE I STOCKHOLDERS..........................................1
Section 1.1 Annual Meeting......................................1
Section 1.2 Special Meetings....................................1
Section 1.3 Notices of Meetings.................................1
Section 1.4 Quorums.............................................2
Section 1.5 Conducts of the Stockholder's Meeting...............2
Section 1.6 Conducts of Business................................2
Section 1.7 Notices of Stockholder Business.....................3
Section 1.8 Proxies and Voting..................................4
Section 1.9 Stock Lists.........................................4
ARTICLE II BOARD OF DIRECTORS...................................5
Section 2.1 Number and Term of Office...........................5
Section 2.2 Vacancies and Newly Created Directorships...........5
Section 2.3 Removal.............................................5
Section 2.4 Regular Meetings....................................6
Section 2.5 Special Meetings....................................6
Section 2.6 Quorum..............................................6
Section 2.7 Participation in Meetings by Conference Telephone...6
Section 2.8 Conduct of Business.................................7
Section 2.9 Powers..............................................7
Section 2.10 Compensation of Directors..........................8
Section 2.11 Nomination of Director Candidates..................8
ARTICLE III COMMITTEES..........................................9
Section 3.1 Committees of the Board of Directors................9
Section 3.2 Conduct of Business.................................10
ARTICLE IV OFFICERS.............................................10
Section 4.1 Generally...........................................10
Section 4.2 Chairman of the Board...............................10
Section 4.3 President...........................................11
Section 4.4 Vice President......................................11
Section 4.5 Treasurer...........................................11
(i)
Section 4.6 Secretary...........................................11
Section 4.7 Delegation of Authority.............................12
Section 4.8 Removal.............................................12
Section 4.9 Action with Respect
to Securities of Other Corporations.............................12
ARTICLE V STOCK.................................................12
Section 5.1 Certificates of Stock...............................12
Section 5.2 Transfers of Stock..................................12
Section 5.3 Record Date.........................................13
Section 5.4 Lost, Stolen or Destroyed Certificates..............13
Section 5.5 Regulations.........................................13
ARTICLE VI NOTICES..............................................13
Section 6.1 Notices.............................................13
Section 6.2 Waivers.............................................14
ARTICLE VII MISCELLANEOUS.......................................14
Section 7.1 Facsimile Signatures................................14
Section 7.2 Corporate Seal......................................14
Section 7.3 Reliance upon Books, Reports and Records............14
Section 7.4 Fiscal Year.........................................14
Section 7.5 Time Periods........................................14
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS..........15
Section 8.1 Right to Indemnification............................15
Section 8.2 Right of Claimant to Bring Suit.....................16
Section 8.3 Non-Exclusivity of Rights...........................16
Section 8.4 Indemnification Contracts...........................17
Section 8.5 Insurance...........................................17
Section 8.6 Effect of Amendment.................................17
ARTICLE IX AMENDMENTS...........................................17
Section 9.1 Amendment of Bylaws.................................17
CERTIFICATE OF SECRETARY........................................18
(ii)
PIONEER CAPITAL ASSOCIATES, INC.
A DELAWARE CORPORATION
BYLAWS
ARTICLE I STOCKHOLDERS
Section 1.1 ANNUAL MEETING - An annual meeting of the
stockholders, for the election of directors to succeed those whose
terms expire and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, on
such date, and at such time as the Board of Directors shall each
year fix, which date shall be within thirteen months subsequent to
the later of the date of incorporation or the last annual meeting
of stockholders.
Section 1.2 SPECIAL MEETINGS - Special meetings of the
stockholders, for any purpose or purposes prescribed in the notice
of the meeting, may be called only (i) by the Board of Directors
pursuant to a resolution adopted by a majority of the total number
of authorized directors (whether or not there exists any vacancies
in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption) or
(ii) by the holders of not less than 10% of all shares entitled to
cast votes at the meeting, voting together as a single class and
shall be held at such place, on such date, and at such time as
they shall fix. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice.
Section 1.3 NOTICE OF MEETINGS - Written notice of the place,
date, and time of all meetings of the stockholders shall be given,
not less than ten (10) nor more than sixty (60) days before the
date on which the meeting is to be held, to each stockholder
entitled to vote at such meeting, except as otherwise provided
herein or required by law (Meaning, here and hereinafter, as
required from time to time by the Delaware General Corporation Law
or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time,
written notice need not be given of the adjourned meeting if the
place, date and time thereof are announced at the meeting at which
the adjournment is taken; provided, however, that if the date of
any adjourned meeting is more than thirty (30) days after the date
for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the
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place, date, and time of the adjourned meeting shall be given in
conformity herewith. At any adjourned meeting, any business may
be transacted which might have been transacted at the original
meeting.
Section 1.4 QUORUMS
At any meeting of the stockholders, the holders of a majority of
all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a
larger number may be required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock
entitled to vote who are present, in person or by proxy, may
adjourn the meeting to another place, date, or time.
If a notice of any adjourned special meeting of stockholders is
sent to all stockholders entitled to vote thereat, stating that it
will be held with those present constituting a quorum, then except
as otherwise required by law, those present at such adjourned
meeting shall constitute a quorum, and all matters shall be
determined by a majority of the votes cast at such meeting.
Section 1.5 CONDUCTS OF THE STOCKHOLDERS' MEETING
At every meeting of the stockholders, the Chairman, if there is
such an officer, or if not, the President of the Corporation, or
in his absence the Vice President designated by the President, or
in the absence of such designation any Vice President, or in the
absence of the President or any Vice President, a chairman chosen
by the majority of the voting shares represented in person or by
proxy, shall act as Chairman. The Secretary of the Corporation or
a person designated by the Chairman shall act as Secretary of the
meeting. Unless otherwise approved by the Chairman, attendance at
the stockholders' meeting is restricted to stockholders of record,
persons authorized in accordance with Section 8 of these Bylaws to
act by proxy, and officers of the Corporation.
Section 1.6 CONDUCTS OF BUSINESS
The Chairman shall call the meeting to order, establish the
agenda, and conduct the business of the meeting in accordance
therewith or, at the Chairman's discretion; it may be conducted
otherwise in accordance with the wishes of the stockholders in
attendance. The date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at the
meeting shall be announced at the meeting.
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The Chairman shall also conduct the meeting in an orderly manner,
rule on the precedence of and procedure on, motions and other
procedural matters, and exercise discretion with respect to such
procedural matters with fairness and good faith toward all those
entitled to take part. The Chairman may impose reasonable limits
on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person
in attendance become unruly or obstruct the meeting proceedings,
the Chairman shall have the power to have such person removed from
participation. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at a meeting except in
accordance with the procedures set forth in this Section 1.6 and
Section 1.7, below. The Chairman of a meeting shall, if the facts
warrant, determine and declare to the meeting that business was
not properly brought before the meeting and in accordance with the
provisions of this Section 1.6 and Section 1.7, and if he should
so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
Section 1.7 NOTICE OF STOCKHOLDER BUSINESS
At an annual or special meeting of the stockholders, only such
business shall be conducted as shall have been properly brought
before the meeting. To be properly brought before a meeting,
business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of
Directors, (b) properly brought before the meeting by or at the
direction of the Board of Directors, (c) properly brought before
an annual meeting by a stockholder, or (d) properly brought before
a special meeting by a stockholder, but if, and only if, the
notice of a special meeting provides for business to be brought
before the meeting by stockholders. For business to be properly
brought before a meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of
the Corporation.
To be timely, a stockholder proposal to be presented at an annual
meeting shall be received at the Corporation's principal executive
offices not less than 120 calendar days in advance of the date
that the Corporation's (or the Corporation's predecessor's) proxy
statement was released to stockholders in connection with the
previous year's annual meeting of stockholders, except that if no
annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than 30 calendar days from
the date contemplated at the time of the previous year's proxy
statement, or in the event of a special meeting, notice by the
stockholder to be timely must be received not later than the close
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of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to
bring before the annual or special meeting (a) a brief description
of the business desired to be brought before the annual or special
meeting and the reasons for conducting such business at the
special meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business,
(c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material
interest of the stockholder in such business.
Section 1.8 PROXIES AND VOTING
At any meeting of the stockholders, every stockholder entitled to
vote may vote in person or by proxy authorized by an instrument in
writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting. No stockholder may
authorize more than one proxy for his shares.
Each stockholder shall have one vote for every share of stock
entitled to vote which is registered in his or her name on the
record date for the meeting, except as otherwise provided herein
or required by law.
All voting, including on the election of directors but excepting
where otherwise required by law, may be by a voice vote; provided,
however, that upon demand therefor by a stockholder entitled to
vote or his or her proxy, a stock vote shall be taken. Every
stock vote shall be taken by ballots, each of which shall state
the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for
the meeting. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes
cast, and except as otherwise required by law, all other matters
shall be determined by a majority of the votes cast.
Section 1.9 STOCK LISTS
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the
number of shares registered in his or her name, shall be open to
the examination of any such stockholder, for any purpose germane
to the meeting, during ordinary business hours for a period of at
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least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at
the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting
during the whole time thereof and shall be open to the examination
of any such stockholder who is present. This list shall
presumptively determine the identity of the stockholders entitled
to vote at the meeting and the number of shares held by each of
them.
ARTICLE II BOARD OF DIRECTORS
Section 2.1 NUMBER AND TERM OF OFFICE The number of directors
shall initially be three (3) and, thereafter, shall be fixed from
time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is
presented to the Board for adoption). A vacancy resulting from the
removal of a director by the stockholders as provided in Article
II, Section 2.3 below may be filled at special meeting of the
stockholders held for that purpose. All directors shall hold
office until the expiration of the term for which elected and
until their respective successors are elected, except in the case
of the death, resignation or removal of any director.
Section 2.2 VACANCIES AND NEWLY CREATED DIRECTORSHIPS
Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause (other
than removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office,
though less than a quorum, and directors so chosen shall hold
office for a term expiring at the next annual meeting of
stockholders. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent
director.
Section 2.3 REMOVAL
Subject to the rights of holders of any series of Preferred Stock
then outstanding, any directors, or the entire Board of Directors,
may be removed from office at any time, with or without cause, but
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only by the affirmative vote of the holders of at least a majority
of the voting power of all of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
Vacancies in the Board of Directors resulting from such removal
may be filled by a majority of the directors then in office,
though less than a quorum or by the stockholders as provided in
Article II, Section 2.1 above. Directors so chosen shall hold
office until the new annual meeting of stockholders.
Section 2.4 REGULAR MEETINGS
Regular meetings of the Board of Directors shall be held at such
place or places, on such date or dates, and at such time or times
as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting
shall not be required.
Section 2.5 SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by one-
third of the directors then in office (rounded up to the nearest
whole number) or by the chief executive officer and shall be held
at such place, on such date, and at such time as they or he or she
shall fix. Notice of the place, date, and time of each such
special meeting shall be given each director by whom it is not
waived by mailing written notice not fewer than five (5) days
before the meeting or by telegraphing or personally delivering the
same not fewer than twenty-four (24) hours before the meeting.
Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting.
Section 2.6 QUORUMS
At any meeting of the Board of Directors, a majority of the total
number of authorized directors shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a
majority of those present may adjourn the meeting to another
place, date, or time, without further notice or waiver thereof.
Section 2.7 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE
Members of the Board of Directors, or of any committee thereof,
may participate in a meeting of such 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 and such participation shall constitute presence in
person at such meeting.
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Section 2.8 CONDUCTS OF BUSINESS
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the Board may from time to
time determine, and all matters shall be determined by the vote of
a majority of the directors present, except as otherwise provided
herein or requited by law. Action may be taken by the Board of
Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes
of proceedings of the Board of Directors.
Section 2.9 POWERS
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, including, without limiting
the generality of the foregoing, the unqualified power:
(a) To declare dividends from time to time in accordance with law;
(b) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(c) To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to do all
things necessary in connection therewith;
(d) To remove any officer of the Corporation with or without
cause, and from time to time to devolve the powers and duties of
any officer upon any other person for the time being;
(e) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and
agents;
(f) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers,
employees and agents of the Corporation and its subsidiaries as it
may determine;
(g) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine; and
(h) To adopt from time to time regulations, not inconsistent with
these bylaws, for the management of the Corporation's business and
affairs.
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Section 2.10 COMPENSATION OF DIRECTORS
Directors, as such, may receive, pursuant to resolution of the
Board of Directors, fixed fees and other compensation for their
services as directors, including, without limitation, their
services as members of committees of the Board of Directors.
Section 2.11 NOMINATION OF DIRECTOR CANDIDATES
Subject to the rights of holders of any class or series of
Preferred Stock then outstanding, nominations for the election of
Directors may be made by the Board of Directors or a proxy
committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors
generally. However, any stockholder entitled to vote in the
election of Directors generally may nominate one or more persons
for election as Directors at a meeting only if timely notice of
such stockholder's intent to make such nomination or nominations
has been given in writing to the Secretary of the Corporation. To
be timely, a stockholder nomination for a director to be elected
at an annual meeting shall be received at the Corporation's
principal executive offices not less than 120 calendar days in
advance of the date that the Corporation's (or the Corporation's
Predecessor's) Proxy statement was released to stockholders in
connection with the previous year's annual meeting of
stockholders, except that if no annual meeting was held in the
previous year or the date of the annual meeting has been changed
by more than 30 calendar days from the date contemplated at the
time of the previous year's proxy statement, or in the event of a
nomination for director to be elected at a special meeting,
notice by the stockholders to be timely must be received not later
than the close of business on the tenth day following the day on
which such notice of the date of the special meeting was mailed or
such public disclosure was made. Each such notice shall set
forth: (a) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote for the election of
Directors on the date of such notice and intends to appear in
person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each
nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of
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the Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the
Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 2.11 and shall thereafter become
unable or unwilling to stand for election to the Board of
Directors, the Board of Directors or the stockholder who proposed
such nominee, as the case may be, may designate a substitute
nominee upon delivery, not fewer than five days prior to the date
of the meeting for the election of such nominee, of a written
notice to the Secretary setting forth such information regarding
such substitute nominee as would have been required to be
delivered to the Secretary pursuant to this Section 2.11 had such
substitute nominee been initially proposed as a nominee. Such
notice shall include a signed consent to serve as a director of
the Corporation, if elected, of each such substitute nominee.
If the chairman of the meeting for the election of Directors
determines that a nomination of any candidate for election as a
Director at such meeting was not made in accordance with the
applicable provisions of this Section 2.11, such nomination shall
be void; provided, however, that nothing in this Section 2.11
shall be deemed to limit any voting rights upon the occurrence of
dividend arrearages provided to holders of Preferred Stock
pursuant to the Preferred Stock designation for any series of
Preferred Stock.
ARTICLE III COMMITTEES
Section 3.1 COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors, by a vote of a majority of the whole
Board, may from time to time designate committees of the Board,
with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for
those committees and any others provided for herein, elect a
director or directors to serve as the member or members,
designating, if it desires, other directors as alternate members
who may replace any absent or disqualified member at any meeting
of the committee. Any committee so designated may exercise the
power and authority of the Board of Directors to declare a
dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the
Delaware General Corporation Law if the resolution which
designates the committee or a supplemental resolution of the Board
of Directors shall so provide. In the absence or disqualification
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of any member of any committee and any alternate member in his
place, the member or members of the committee present at the
meeting and not disqualified from voting, whether or not he or she
or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the
place of the absent or disqualified member.
Section 3.2 CONDUCTS OF BUSINESS
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith,
except as otherwise provided herein or required by law. Adequate
provision shall be made for notice to members of all meetings;
one-third of the authorized members shall constitute a quorum
unless the committee shall consist of one or two members, in which
event one member shall constitute a quorum; and all matters shall
be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all
members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such
committee.
ARTICLE IV OFFICERS
Section 4.1 GENERALLY
The officers of the Corporation shall consist of a President, one
or more Vice Presidents, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board of
Directors, a Chairman of the Board and such other officers as may
from time to time be appointed by the Board of Directors.
Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual
meeting of stockholders. Each officer shall hold office until his
or her successor is elected and qualified or until his or her
earlier resignation or removal. The Chairman of the Board, if
there shall be such an officer and the President shall each be
members of the Board of Directors. Any number of offices may he
held by the same person.
Section 4.2 CHAIRMEN OF THE BOARD
The Chairman of the Board, if there shall be such an officer,
shall, if present, preside at all meetings of the Board of
Directors, and exercise and perform such other powers and duties
as may be from time to time assigned to him by the Board of
Directors or prescribed by these bylaws.
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Section 4.3 PRESIDENTS
The President shall be the chief executive officer of the
Corporation. Subject to the provisions of these bylaws and to the
direction of the Board of Directors, he or she shall have the
responsibility for the general management and control of the
business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the
office of chief executive or which are delegated to him or her by
the Board of Directors. He or she shall have power to sign all
stock certificates, contracts and other instruments of the
Corporation which are authorized and shall have general
supervision and direction of all of the other officers, employees
and agents of the Corporation.
Section 4.4 VICE PRESIDENT
Each Vice President shall have such powers and duties as may be
delegated to him or her by the Board of Directors. One Vice
President shall be designated by the Board to perform the duties
and exercise the powers of the President in the event of the
President's absence or disability.
Section 4.5 TREASURERS
Unless otherwise designated by the Board of Directors, the Chief
Financial Officer of the Corporation shall be the Treasurer.
The Treasurer shall have the responsibility for maintaining the
financial records of the Corporation and shall have custody of all
monies and securities of the Corporation. He or she shall make
such disbursements of the funds of the Corporation as are
authorized and shall render from time to time an account of all
such transactions and of the financial condition of the
Corporation.
The Treasurer shall also perform such other duties as the Board of
Directors may from time to time prescribe.
Section 4.6 SECRETARIES
The Secretary shall issue all authorized notices for, and shall
keep, or cause to be kept, minutes of all meetings of the
stockholders, the Board of Directors, and all committees of the
Board of Directors. He or she shall have charge of the corporate
books and shall perform such other duties as the Board of
Directors may from time to time prescribe.
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Section 4.7 DELEGATION OF AUTHORITY
The Board of Directors may from time to time delegate the powers
or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
Section 4.8 REMOVALS
Any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors.
Section 4.9
ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS
Unless otherwise directed by the Board of Directors, the President
or any officer of the Corporation authorized by the President
shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of stockholders
of or with respect to any action of stockholders of any other
corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities
in such other corporation.
ARTICLE V STOCK
Section 5.1 CERTIFICATES OF STOCK
Each stockholder shall be entitled to a certificate signed by, or
in the name of the Corporation by, the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certifying the number of
shares owned by him or her. Any of or all the signatures on the
certificate may be facsimile.
Section 5.2 TRANSFERS OF STOCK
Transfers of stock shall be made only upon the transfer books of
the Corporation kept at an office of the Corporation or by
transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance
with Section 4 of Article V of these bylaws, an outstanding
certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
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Section 5.3 RECORD DATE
The Board of Directors may fix a record date, which shall not be
more than sixty (60) nor fewer than ten (10) days before the date
of any meeting of stockholders, nor more than sixty (60) days
prior to the time for the other action hereinafter described, as
of which there shall be determined the stockholders who are
entitled: to notice of or to vote at any meeting of stockholders
or any adjournment thereof; to receive payment of any dividend or
other distribution or allotment of any rights; or to exercise any
rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
Section 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES
In the event of the loss, theft or destruction of any certificate
of stock, another may be issued in its place pursuant to such
regulations as the Board of Directors may establish concerning
proof of such loss, theft or destruction and concerning the giving
of a satisfactory bond or bonds of indemnity.
Section 5.5 REGULATIONS - The issue, transfer, conversion and
registration of certificates of stock shall be governed by such
other
regulations as the Board of Directors may establish.
ARTICLE VI NOTICES
Section 6.1 NOTICES
Except as otherwise specifically provided herein or required by
law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may
in every instance be effectively given by hand delivery to the
recipient thereof, by depositing such notice in the mails, postage
paid, or by sending such notice by prepaid telegram, mailgram,
telecopy or commercial courier service. Any such notice shall be
addressed to such stockholder, director, officer, employee or
agent at his or her last known address as the same appears on the
books of the Corporation. The time when such notice shall be
deemed to be given shall be the time such notice is received by
such stockholder, director, officer, employee or agent, or by any
person accepting such notice on behalf of such person, if hand
delivered, or the time such notice is dispatched, if delivered
through the mails or be telegram or mailgram.
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Section 6.2 WAIVERS
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before or after the time of
the event for which notice is to be given, shall be deemed
equivalent to the notice required to be given to such stockholder,
director, officer, employee or agent. Neither the business nor
the purpose of any meeting need be specified in such a waiver.
ARTICLE VII MISCELLANEOUS
Section 7.1 FACSIMILE SIGNATURES
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these bylaws, facsimile
signatures of any officer or officers of the Corporation may be
used whenever and as authorized by the Board of Directors or a
committee thereof.
Section 7.2 CORPORATE SEAL
The Board of Directors may provide a suitable seal, containing the
name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by
the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 7.3 RELIANCE UPON BOOKS, REPORTS AND RECORDS
Each director, each member of any committee designated by the
Board of Directors, and each officer of the Corporation shall, in
the performance of his duties, be fully protected in relying in
good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of
its officers, by an independent certified public accountant, or by
an appraiser selected with reasonable care.
Section 7.4 FISCAL YEAR - The fiscal year of the Corporation shall
be as fixed by the Board of Directors.
Section 7.5 TIME PERIODS - In applying any provision of these
bylaws which require that an act be done or not done a specified
number of days prior to an event or that an act be done during a
period of a specified number of days prior to an event, calendar
days shall be used, the day of the doing of the act shall be
excluded, and the day of the event shall be included.
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ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be made
a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative, is or was a
director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer
or employee of another corporation, or of a Partnership, joint
venture, trust or other enterprise, including service with respect
to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or
employee or in any other capacity while serving as a director,
officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
said Law permitted the Corporation to provide prior to such
amendment) against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties, amounts paid or to be paid in settlement and amounts
expended in seeking indemnification granted to such person under
applicable law, this bylaw or any agreement with the Corporation)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or employee and shall
inure to the benefit of his or her heirs, executors and
administrators; PROVIDED, HOWEVER, that, except as provided in
Section 8.2 of this Article VIII, the Corporation shall indemnify
any such person seeking indemnity in connection with an action,
suit or proceeding (or part thereof) initiated by such person only
if (a) such indemnification is expressly required to be made by
law, (b) the action, suit or proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation, (c) such
indemnification is provided by the Corporation, in its sole
discretion, pursuant to the powers vested in the Corporation under
the Delaware General Corporation Law, or (d) the action, suit or
proceeding (or part thereof) is brought to establish or enforce a
right to indemnification under an indemnity agreement or any other
statute or law or otherwise as required under Section 145 of the
Delaware General Corporation Law. Such right shall be a contract
right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of
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its final disposition; PROVIDED, HOWEVER, that, unless the
Delaware General Corporation Law then so prohibits, the payment of
such expenses incurred by a director or officer of the Corporation
in his or her capacity as a director or officer (and not in any
other capacity in which service was or is tendered by such person
while a director or officer, including, without limitation.
service to an employee benefit plan) in advance of the final
disposition of such proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it should
be determined ultimately that such director or officer is not
entitled to be indemnified under this Section or otherwise.
Section 8.2 RIGHT OF CLAIMANT TO BRING SUIT
If a claim under Section 1 of this Article VIII is not paid in
full by the Corporation within ninety (90) days after a written
claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim and, if such suit is not frivolous
or brought in bad faith, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. The burden of proving
such claim shall be on the claimant. It shall be a defense to any
such action (other then an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any, has been
tendered to this Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action
or create a presumption that claimant has not met the applicable
standard of conduct.
Section 8.3 NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person in Sections 1 and 2 shall not
be exclusive of any other right which such persons may have or
hereafter acquire under any statute, provision of the Certificate
of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
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Section 8.4 INDEMNIFICATION CONTRACTS
The Board of Directors is authorized to enter into a contract with
any director, officer, employee or agent of the Corporation, or
any person serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including
employee benefit plans, providing for indemnification rights
equivalent to or, if the Board of Directors so determinates,
greater than, those provided for in this Article VIII.
Section 8.5 INSURANCE
The Corporation shall maintain insurance to the extent reasonably
available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General
Corporation Law.
Section 8.6 EFFECTS OF AMENDMENT
Any amendment, repeal or modification of any provision of this
Article VIII by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of
a director or officer of the Corporation existing at the time of
such amendment, repeal or modification.
ARTICLE IX AMENDMENTS
Section 9.1 AMENDMENTS OF BYLAWS
The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the Corporation. Any adoption, amendment or
repeal of By-Laws of the Corporation by the stockholders shall
require, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders
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of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
CERTIFICATE OF SECRETARY
I hereby certify that I am the duly appointed and acting Secretary
of Pioneer Capital Associates, Inc., a Delaware corporation (the
"Corporation"), and that the foregoing Bylaws, comprising eighteen
(18) pages, constitute the Bylaws of the Corporation as duly
adopted on April 28, 2000, by the unanimous written consent of the
Board of Directors of the Corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name on April
28, 2000.
JAMES E BELL
JAMES E BELL
Secretary
Pioneer Capital Associates, Inc. CORPORATE SEAL
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