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Exhibit 3.4
BYLAWS
OF
DYNACS INC.
(A DELAWARE CORPORATION)
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TABLE OF CONTENTS
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ARTICLE I
OFFICES AND AGENT ....................................................... 1
1.1 Principal Office ............................................... 1
1.2 Registered Office and Agent .................................... 1
ARTICLE II
STOCKHOLDERS' MEETINGS ................................................... 1
2.1 Annual Meetings ................................................ 1
2.2 Special Meetings ............................................... 1
2.3 Place of Meetings .............................................. 2
2.4 Notice of Meetings ............................................. 2
2.5 Waiver of Notice ............................................... 2
2.6 Fixing of Record Date .......................................... 2
2.7 Stockholders List .............................................. 3
2.8 Proxies ........................................................ 3
2.9 Voting ......................................................... 4
2.10 Quorum and Required Vote ....................................... 4
2.11 Voting Procedures and Inspections of Elections ................. 5
2.12 Stockholder Proposals at Annual Meetings ....................... 6
2.13 Nominations of Persons for Election to the Board of Directors .. 6
2.14 Conduct of Meetings ............................................ 7
2.15 Adjournment .................................................... 8
ARTICLE III
BOARD OF DIRECTORS ....................................................... 8
3.1 Number, Qualifications and Term of Office ...................... 8
3.2 Vacancies ...................................................... 9
3.3 Resignation .................................................... 9
3.4 Removal ........................................................ 9
3.5 Compensation ................................................... 9
ARTICLE IV
MEETINGS OF THE BOARD .................................................... 9
4.1 Place of Meetings .............................................. 9
4.2 Regular Meetings ............................................... 10
4.3 Special Meetings ............................................... 10
4.4 Notice of Special Meetings ..................................... 10
4.5 Waiver of Notice ............................................... 10
4.6 Quorum and Action at Meeting ................................... 10
4.7 Presumption of Assent .......................................... 11
4.8 Committees ..................................................... 11
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4.9 Informal Action by Directors .................................. 12
4.10 Telephonic Meetings ........................................... 12
ARTICLE V
COMMITTEES OF THE BOARD ................................................. 12
5.1 Audit Committee ............................................... 12
5.2 Compensation Committee ........................................ 12
5.3 Other Committees .............................................. 12
5.4 Committee Minutes ............................................. 13
ARTICLE VI
OFFICERS AND AGENTS ..................................................... 13
6.1 Enumeration, Election and Term ................................ 13
6.2 General Duties ................................................ 13
6.3 Vacancies ..................................................... 13
6.4 Compensation .................................................. 14
6.5 Resignation and Removal ....................................... 14
6.6 Chairman of the Board ......................................... 14
6.7 Chief Executive Officer ....................................... 14
6.8 President ..................................................... 14
6.9 Chief Operating Officer ....................................... 15
6.10 Chief Financial Officer ....................................... 15
6.11 Vice Presidents ............................................... 15
6.12 Secretary ..................................................... 15
6.13 Treasurer ..................................................... 16
6.14 Assistant Secretaries and Assistant Treasurers ................ 16
ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS ....................... 17
7.1 Indemnification ............................................... 18
7.2 Authority to Advance Expenses ................................. 18
7.3 Right to Claimant to Bring Suit ............................... 18
7.4 Provisions Non-Exclusive ...................................... 18
7.5 Authority to Insure ........................................... 18
7.6 Survival of Rights ............................................ 19
7.7 Settlement of Claims .......................................... 19
7.8 Effect of Amendment ........................................... 19
7.9 Subrogation ................................................... 19
7.10 No Duplication of Payments .................................... 19
ARTICLE VIII
CAPITAL STOCK ........................................................... 19
8.1 Certificates of Stock ......................................... 19
8.2 Issuance of Stock ............................................. 20
8.3 Lost Certificates ............................................. 20
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8.4 Transfer of Shares ............................................ 20
8.5 Registered Stockholders ....................................... 20
8.6 Stock Ledger .................................................. 20
8.7 Restriction on Transfer of Shares ............................. 20
ARTICLE IX
FISCAL YEAR ............................................................. 21
ARTICLE X
DIVIDENDS ............................................................... 21
ARTICLE XI
AMENDMENTS .............................................................. 21
ARTICLE XII
MISCELLANEOUS ........................................................... 22
12.1 Gender ........................................................ 22
12.2 Invalid Provision ............................................. 22
12.3 Governing Law ................................................. 22
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Exhibit 3.4
DYNACS INC.
BYLAWS
ARTICLE I
OFFICES AND AGENT
1.1 Principal Office. The principal office of the Corporation may
be located within or without the State of Delaware, as designated by the Board
of Directors. The Corporation may have other offices and places of business at
such places within or without the State of Delaware as shall be determined by
the Directors or as may be required by the business of the Corporation.
1.2 Registered Office and Agent. The Corporation shall have and
maintain at all times (a) a registered office in the State of Delaware, which
office shall be located at 1013 Centre Road, New Castle County, Wilmington,
Delaware 19805, and (b) a registered agent located at such address whose name
is Corporation Service Company, until changed from time to time as provided by
the General Corporation Law of the State of Delaware ("Delaware Corporation
Law").
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 Annual Meetings. The annual meeting of stockholders for the
election of Directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on such date and at such
time as determined by resolution of the Board of Directors. If this date falls
upon a legal holiday, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in accordance with
the foregoing provisions, the Board of Directors shall cause the meeting to be
held as soon thereafter as convenient.
2.2 Special Meetings. Special meetings of the stockholders of the
Corporation, for any purpose or purposes, unless otherwise prescribed by statute
or by the certificate of incorporation, may be called by the Chief Executive
Officer and shall be called by the Chief Executive Officer or Secretary at the
request in writing of a majority of the Board of Directors, or at the request
in writing of stockholders owning no less than two-thirds (2/3) of the amount
of the entire capital stock of the Corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. No business may be transacted at any special meeting except
that referred to in the notice thereof. Any amendment, change or repeal of this
Section 2 of Article II, or any other amendment to these Bylaws that will have
the effect of permitting circumvention of or modifying this Section 2 of
Article II, shall require the favorable vote, at a stockholders' meeting, of
the holders of at least sixty-six and two-thirds percent (66-2/3%) of the
then-outstanding shares of stock of the Corporation entitled to vote.
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2.3 Place of Meetings. All meetings of stockholders of the Corporation
shall be held within or without the State of Delaware as may be designated by
the Board of Directors or the President, or, if not designated, at the principal
office of the Corporation.
2.4 Notice of Meetings.
(a) Except as otherwise provided in these Bylaws or Delaware
Corporation Law, written notice of any meeting of stockholders, stating the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose for which the meeting is called, shall be delivered either personally or
by mail to each stockholder of record entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the meeting by or
at the direction of the Board of Directors, the President or the Secretary. If
mailed, such notice shall be deemed to be delivered as to any stockholder of
record when deposited in the United States mail addressed to the stockholder at
his address as it appears on the stock transfer books of the Corporation, with
postage prepaid.
(b) 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. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
2.5. Waiver of Notice. Any stockholder, either before or after any
stockholders' meeting, may waive in writing notice of the meeting, and his
waiver shall be deemed the equivalent of giving notice. Attendance at a meeting
by a stockholder shall constitute a waiver of notice, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
2.6. Fixing of Record Date. For the purpose of determining the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors of the Corporation
may fix in advance a record date, which shall be not more than sixty (60) days
nor less than ten (10) days prior to the date of such meeting, nor more than
sixty (60) days prior to any other action. If no record date is fixed, the
record date for determining the stockholders entitled to notice of or to vote at
a meeting of stockholders shall be at the close of business on the day preceding
the day on which notice is given, or, if notice is waived, at the close of
business on the day preceding the day on which the meeting is held. The record
date for determining stockholders for any purpose shall not precede the date on
which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of, or vote at, a
meeting of stockholders shall apply to any adjournment of the meeting, provided,
however, that the Board of Directors may fix a new
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record date for the adjourned meeting.
2.7 Stockholders List. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote
at the meeting arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
2.8 Proxies.
(a) A stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for him by proxy, which proxy
shall be filed with the Secretary at or before the meeting at which it is used.
No proxy shall be voted or acted upon after three (3) years from its date,
unless the proxy provides for a longer period.
(b) Without limiting the manner in which a stockholder may
authorize another person or persons to act for him as proxy pursuant to
subsection (a) of this Section, the following shall constitute a valid means by
which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another
person or persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholder's authorized officer,
director, employee or agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature or stamp signature.
(ii) A stockholder may authorize another person or persons to
act for such stockholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
to the person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such transmission,
provided that any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (c)
of this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the
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original writing or transmission could be used, provided, that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
(d) A duly executed proxy shall be irrevocable if it states that
it is irrevocable and if, and as long as, it is coupled with and interest
sufficient in law to support and irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally.
2.9 Voting.
(a) Each stockholder shall have one vote for each share of stock
entitled to vote held of record by such stockholder and a proportionate vote
for each fractional share so held, unless otherwise provided in the Certificate
of Incorporation.
(b) Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of the
Corporation such person has expressly empowered the pledgee to vote thereon, in
which case only the pledgee, or such pledgee's proxy, may represent such stock
and vote thereon.
(c) If shares having voting power stand of record in the names of
two or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety, or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary is given written notice to the contrary and is furnished
with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect: (i) if only one votes, such person's act binds all;
(ii) if more than one vote, the act of the majority so voting binds all; and
(iii) if more than one vote, but the vote is evenly split on any particular
matter, each fraction may vote the securities in question proportionately, or
any person voting the shares of a beneficiary, if any, may apply to the Court
of Chancery or any court of competent jurisdiction to appoint an additional
person to act with the persons so voting the shares. The shares shall then be
voted as determined by a majority of such persons and the person appointed by
the court. If a tenancy is held in unequal interests, a majority or even-split
for the purpose of this subsection shall be a majority or even-split in
interest.
2.10 Quorum and Required Vote. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, the holders of at least a
majority of the shares entitled to vote at the meeting, present in person or by
proxy, shall constitute a quorum for the transaction of business. In all
manners other than the election of Directors, the affirmative vote of a
majority of the shares present or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders,
and, if there are two or more classes of stock entitled to vote as separate
classes, then, in the case of each such class, the affirmative vote of a
majority of the shares of that class present or represented by proxy at the
meeting shall be the vote of such
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class unless a different vote is required by an express provision of law, the
Certificate of Incorporation or these Bylaws. Directors shall be elected by a
plurality of the votes present in person or represented by proxy at the meeting
and entitled to vote at the election of Directors.
2.11 VOTING PROCEDURES AND INSPECTIONS OF ELECTIONS.
(a) The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of duties of inspector, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with Section 212(c)(2) of the Delaware Corporation Law, the ballots and the
regular books and records of the Corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder
holds of record. If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make their
certification pursuant to sub-section (b)(v) above shall specify the precise
information considered by them, including the person or persons from whom they
obtained the information, when the information was obtained, the means by which
the information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
2.12 NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF DIRECTORS.
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(a) In addition to any other applicable requirements, only persons who
are nominated in accordance with the following procedures shall be eligible for
election as Directors. Nominations of persons for election to the Board of
Directors may be made at a meeting of stockholders by or at the direction of the
Board of Directors, by any nominating committee or person appointed by the Board
of Directors or by any stockholder of the Corporation entitled to vote for the
election of Directors at the meeting who complies with the notice procedures set
forth in this Section 12 of Article II.
(b) Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation, not
less than 120 days prior to the date on which the Corporation first mailed its
proxy materials for the previous year's annual meeting of stockholders (or the
date on which the Corporation mails its proxy materials for the current year if
during the prior year the Corporation did not hold an annual meeting or if the
date of the annual meeting was changed more than 30 days from the prior year).
Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or re-election as a Director, (A)
the name, age, business address and residence address of the person, (B) the
principal occupation or employment of the person, (C) the class and number of
shares of the Corporation which are beneficially owned by the person, and (D)
any other information relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to Rule 14a under
the Securities Exchange Act of 1934; and (ii) as to the stockholder giving the
notice, (A) the name and record address of the stockholder, and (B) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a Director of the
Corporation. No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth herein.
These provisions shall not apply to nomination of persons, if any, entitled to
be separately elected by holders of preferred stock.
(c) The presiding officer of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and the defective nomination shall be
disregarded.
2.14 Conduct of Meetings. The Board of Directors may adopt by resolution
such rules and regulations for the conduct of meetings of stockholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the presiding officer of any
meeting of stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such presiding officer, are appropriate for the proper conduct of the meeting.
Such rules, regulations and procedures, whether adopted by the Board of
Directors or prescribed by the presiding officer of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
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or participation in the meeting to stockholders of record, their duly
authorized and constituted proxies or such other persons as the presiding
officer of the meeting shall determine; (iv) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions and/or comments by participants. Unless and
to the extent determined by the Board of Directors or the presiding officer of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
2.15 Adjournment. In case a quorum shall not be present at any
meeting, the presiding officer of the meeting or a majority in interest of the
stockholders entitled to vote thereat present in person or by proxy shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be represented. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed, but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof. In addition, the Board of Directors may adjourn a meeting of the
stockholders if the Board of Directors determines that adjournment is necessary
or appropriate in order to enable the stockholders (i) to consider fully
information that the Board of Directors determines has not been made
sufficiently or timely available to stockholders or (ii) to otherwise
effectively exercise their voting rights.
ARTICLE III
BOARD OF DIRECTORS
3.1 Number, Qualifications and Term of Office.
(a) Except as otherwise provided in the Certificate of
Incorporation or the Delaware Corporation Law, the business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors.
(b) Directors need not be stockholders of the Corporation.
(c) The number of Directors of the Corporation shall not be
less than three (3) nor more than twelve (12) until changed by amendment of the
Certificate of Incorporation or by a Bylaw amending this Section 1 of Article
III duly adopted by the vote or written consent of holders of a majority of the
outstanding shares or by the Board of Directors. The exact number of Directors
shall be fixed from time to time, within the limits specified in the
Certificate of Incorporation or in this Section 1 of Article III, by a Bylaw or
amendment thereof duly adopted by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present or by
the Board of Directors. Subject to the foregoing provisions for changing the
number of Directors, the number of Directors of the Corporation is fixed at
five (5).
(d) Except as provided in Section 2 of Article III of these
Bylaws, the
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Directors shall be elected by a plurality vote of the shares represented in
person or by proxy at the stockholders annual meeting in each year and entitled
to vote on the election of Directors. Each Director shall hold office until the
next annual meeting of stockholders or until such Director's earlier resignation
or removal and until such Director's successor shall be duly elected and
qualified. If, for any cause, the Board of Directors shall not have been elected
at an annual meeting, they may be elected as soon thereafter as convenient at a
special meeting of the stockholders called for that purpose in the manner
provided in these Bylaws.
3.2 Vacancies. Except as otherwise provided by the Certificate of
Incorporation or any amendments thereto, vacancies and newly created
Directorships resulting from any increase in the number of authorized Directors
may be filled by a majority of the Directors then in office, although less than
a quorum, or by a sole remaining Director, and each Director so elected shall
hold office for the unexpired portion of the term of the Director whose place
shall be vacant, and until his successor shall have been duly elected and
qualified. A vacancy in the Board of Directors shall be deemed to exist under
this Section 2 of Article III in the case of the death, removal or resignation
of any Director, or if the stockholders fail at any meeting of stockholders at
which Directors are to be elected to elect the number of Directors then
constituting the whole Board of Directors.
3.3 Resignation. Any Director may resign by delivering his written
resignation to the Corporation at its principal office, addressed to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. When one or more Directors shall resign from the Board of
Directors, effective at a future date, a majority of the Directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each Director so chosen shall hold
office for the unexpired portion of the term of the Director whose place shall
be vacated and until his successor shall have been duly elected and qualified.
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 or by action of the Board of
Directors.
3.5 Compensation. Directors may be paid such compensation for their
services and such reimbursements for expenses of attendance at meetings as the
Board of Directors may from time to time determine. No such payment shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
MEETINGS OF THE BOARD
4.1 Place of Meetings. The regular or special meetings of the Board of
Directors or any committee designated by the Board of Directors shall be held at
the principal office of the Corporation or at any other place within or without
the State of Delaware that a majority of the
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Board of Directors or any such committee, as the case may be, may designate from
time to time by resolution.
4.2 Regular Meetings. The Board of Directors shall meet each year
immediately after and at the same place as the annual meeting of the
stockholders for the purpose of electing officers and transacting such other
business as may come before the meeting. The Board of Directors or any committee
designated by the Board of Directors may provide, by resolution, for the holding
of additional regular meetings within or without the State of Delaware without
notice of the time and place of such meeting other than such resolution;
provided, that any Director who is absent when such resolution is made shall be
given notice of said resolution.
4.3 Special Meetings. Special meetings of the Board of Directors or any
committee designated by the Board of Directors may be held at any time and
place, within or without the State of Delaware, designated in a call by the
chairman of the Board of Directors, if any, by the President or by a majority of
the members of the Board of Directors or any such committee, as the case may be.
4.4 Notice of Special Meetings. Except as otherwise provided by these
Bylaws or the laws of the State of Delaware, written notice of each special
meeting of the Board of Directors or any committee thereof setting forth the
time and place of the meeting shall be given to each Director by the Secretary
or by the officer or Director calling the meeting not less than two (2) days
prior to the time fixed for the meeting. Notice of special meetings may be
either given in person, by telephone, or by sending a copy of the notice through
the United States mail or by telegram, telex or telecopy, charges prepaid, to
the address of each Director appearing on the books of the Corporation. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail so addressed, with postage prepaid thereon. If notice be given by
telegram, telex or telecopy, such notice shall be deemed to be delivered when
the telegram, telex or telecopy is delivered to the telegraph, telex or telecopy
operator. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
4.5 Waiver of Notice. A Director may waive, in writing, notice of any
special meeting of the Board of Directors or any committee thereof, either
before, at, or after the meeting, and his waiver shall be deemed the equivalent
of giving notice. By attending or participating in a regular or special meeting,
a Director waives any required notice of such meeting unless the Director, at
the beginning of the meeting, objects to the holding of the meeting or the
transaction of business at the meeting.
4.6 Quorum and Action at Meeting. At meetings of the Board of Directors
or any committee designated by the Board of Directors, a majority of the total
number of Directors, or a majority of the members of any such committee, as the
case may be, shall constitute a quorum for the transaction of business. In the
event one or more of the Directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such Director so
disqualified; provided, that in no case shall less than one-third (1/3) of the
number so fixed constitute a quorum. If a quorum is present, the act of the
majority of Directors in attendance
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shall be the act of the Board of Directors or any committee thereof, as the case
may be, unless the act of a greater number is required by these Bylaws, the
Certificate of Incorporation or the Delaware Corporation Law. If a quorum shall
not be present at any meeting of the Board of Directors, the Directors present
thereat may adjourn that meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
4.7 PRESUMPTION OF ASSENT. A Director who is present at a meeting of the
Board of Directors or a committee thereof when action is taken is deemed to have
assented to the action taken unless: (i) he objects at the beginning of such
meeting to the holding of the meeting or the transacting of business at the
meeting; (ii) he contemporaneously requests that his dissent from the action
taken be entered in the minutes of such meeting; or (iii) he gives written
notice of his dissent to the presiding officer of such meeting before its
adjournment or to the Secretary of the Corporation immediately after adjournment
of such meeting. The right of dissent as to a specific action taken at a meeting
of the Board of Directors or a committee thereof is not available to a Director
who votes in favor of such action.
4.8 COMMITTEES. The Board of Directors shall designate an Audit Committee
and Compensation Committee and may, by a resolution passed by a majority of the
whole Board of Directors, designate one or more additional committees,
including, without limitation, an Executive Committee and a Stock Option
Committee. Each committee shall consist of one or more of the Directors of the
Corporation unless as otherwise prescribed herein. Other than the Audit
Committee and Compensation Committee, the Board of Directors 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 member or members of the
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of the absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors and subject to the provisions of Delaware
Corporation Law, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
such papers which may require it. Each such committee shall keep minutes and
make such reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any committee may make
rules for the conduct of its business, but, unless otherwise provided by the
Directors or in such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these Bylaws for the Board of
Directors. Notwithstanding the foregoing, no committee shall have authority as
to any of the following matters: (i) the submission to stockholders of any of
action as to which stockholders' authorization is required by law; (iii) the
filling of vacancies on the Board of Directors or on any Board of Directors or
on any committee; (iii) the fixing of compensation of any Director for serving
on the Board of Directors or on any committee; (iv) the amendment or repeal of
these Bylaws, or the adoption of new Bylaws; or (v) the amendment or repeal of
any resolution of the Board of Directors which, by its terms, shall not be so
amendable or repealable.
(a) Required Committees:
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(i) Audit Committee. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors, shall designate not less
than three (3) of the Directors then in office to constitute an Audit Committee,
each of whom must be independent of management and free from any relationship
that, in the opinion of the Board of Directors, would interfere with such
Director's exercise of independent judgement as a committee member. The Audit
Committee shall assist the Board of Directors of the Corporation in fulfilling
its oversight responsibilities by reviewing: (i) the financial reports and other
financial information provided by the Corporation to any governmental body or
the public; (ii) the Corporation's systems of internal controls regarding
finance, accounting, legal compliance and ethics that management and the Board
of Directors have established; and (iii) the Corporation's auditing, accounting
and financial reporting processes generally. Consistent with this function, the
Audit Committee shall encourage continuous improvement of, and should foster
adherence to, the Corporation's policies, procedures and practices at all
levels. The Board of Directors may designate one member of the Audit Committee
to act as its chairman.
(ii) Compensation Committee. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors, shall
designate not less than three (3) of the Directors then in office to constitute
a Compensation Committee. At least two (2) of such Directors shall be
independent of management and free from any relationship that, in the opinion of
the Board of Directors, would interfere with such Director's exercise of
independent judgment as a committee member. The Compensation Committee shall
have and may exercise all of the authority of the Board of Directors in
administering the Corporation's executive compensation plans.
(b) Optional Committees:
(i) Executive Committee. The Board of Directors may, by
resolution adopted by a majority of the entire Board of Directors, designate one
or more of its members to constitute an Executive Committee. The Executive
Committee shall have and may exercise all of the authority of the Board of
Directors in the management of the business and affairs of the Corporation
within the limits permitted by law, including without limitation, the power and
authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation of Law; and (v) to the
extent authorized in the resolution or resolutions providing for the issuance of
the shares of stock adopted by the Board of Directors, to fix any of the
preference rights of such shares relating to dividends, redemption, dissolution,
any distribution of assets of the Corporation or the conversion into, or the
exchange of shares for, shares of any other class or classes or any other series
of the same of any other class or classes of stock of the Corporation.
(ii) Stock Option Committee. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors, may designate
not less than two (2) of the Directors then in office to constitute a Stock
Option Committee. At least one of such Directors shall be independent of
management and free from any relationship that, in the opinion of the Board of
Directors, would interfere with such Director's exercise of independent judgment
as a
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committee member. The Stock Option shall have the authority to establish a plan
allowing for the issuance of options intended to qualify under the Internal
Revenue Code of 1986, as amended (the "Code"), options not intended to qualify
under the Code, stock appreciation rights, restricted stock, deferred stock and
other stock-based awards, determine to whom such rights will be granted and the
terms of such rights. Unless otherwise established by the Board of Directors,
the members of the Compensation Committee shall serve as the members of the
Stock Option Committee.
(iii) Other Committees. In addition to the Audit Committee
and the Compensation Committee, the Board of Directors may, by resolution
adopted by a majority of the entire Board of Directors, designate one or more
other committees of the Board of Directors, each committee to consist of one or
more of the Directors of the Corporation, which, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation. Such committee
or committees shall have such name or names as may be determined from time to
time by the Board of Directors. A majority of the members of the committee
shall constitute a quorum. The member or members of any such committee (other
than the Audit Committee or Compensation Committee) present at any meeting and
not disqualified from voting may, whether or not they constitute a quorum,
unanimously appoint another member or the Board of Directors to act at the
meeting in the place of any absent or disqualified member. At meetings of such
committees, the act of a majority of the members or alternate members at any
meeting at which there is a quorum shall be the act of the committee. Unless
the Board of Directors otherwise provides, each committee designated by the
Board of Directors may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board of Directors conducts its business
pursuant to these Bylaws.
4.9 Informal Action by Directors. Except as otherwise provided in the
Certificate of Incorporation, any action required or permitted by Delaware
Corporation Law to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent to the action in writing
and the written consents are filed with the minutes of proceedings of the Board
of Directors or committee.
4.10 Telephonic Meetings. Directors or any members of any committee
may participate in a meeting of the Board of Directors or committee by means of
a conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other at the same time. Such
participation shall constitute presence in person at the meeting.
ARTICLE V
OFFICERS AND AGENTS
5.1 Enumeration, Election and Term. The officers of the Corporation
shall consist of a president, a secretary, a treasurer and such other officers
with such other titles as may be
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deemed necessary or desirable by the Board of Directors, including a chief
executive officer, chief operating officer, chief financial officer, one or
more vice presidents, a controller, assistant treasurers and assistant
secretaries and a chairman of the Board of Directors. Any number of offices may
be held by the same person, and no officer need be a stockholder or a resident
of the State of Delaware. Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, each officer shall hold office until his
successor is elected and qualified or until his earlier death, resignation or
removal. The officers of the Corporation shall be elected annually by the Board
of Directors at the first meeting of the Board of Directors held after each
annual meeting of the stockholders.
5.2 General Duties. All officers and agents of the Corporation, as
between themselves and the Corporation, shall have such authority and shall
perform such duties in the management of the Corporation as may be provided in
these Bylaws or as may be determined by resolution of the Board of Directors
not inconsistent with these Bylaws. In all cases where the duties of any
officer, agent or employee are not prescribed by these Bylaws or by the Board
of Directors, such officer, agent or employee shall follow the orders and
instructions of the President.
5.3 Vacancies. The Board of Directors may fill any vacancy occurring
in any office for any reason and may, in its discretion, leave any vacancy
unfilled for such period as it may determine, other than a vacancy in the
office of president or secretary. The officer so selected shall hold office
until his successor is elected and qualified or until his earlier death,
resignation or removal.
5.4 Compensation. The Board of Directors from time to time shall fix
the compensation of the officers of the Corporation. The compensation of other
agents and employees of the Corporation may be fixed by the Board of Directors,
by any committee designated by the Board of Directors or by an officer to whom
that function has been delegated by the Board of Directors.
5.5 Resignation and Removal. Any officer may resign by delivering
his written resignation to the Corporation at its principal office, addressed
to the President or Secretary. Such resignation shall be effective upon
receipt, unless it is specified to be effective at some other time or upon the
happening of some other event. Any officer or agent of the Corporation may be
removed, with or without cause, by vote of the majority of the members of the
Board of Directors whenever in its judgment the best interests of the
Corporation may be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer or an agent shall not of itself create contract
rights.
5.6 Chairman of the Board. The Chairman of the Board of Directors,
if any, shall preside as chairman at meetings of the stockholders and the Board
of Directors. He shall, in addition, have such other duties as the Board of
Directors may prescribe that he perform. At the request of the Chief Executive
Officer, the Chairman of the Board of Directors may, in the case
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of the Chief Executive Officer's absence or inability to act, temporarily act in
his place.
5.7 Chief Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the Corporation and shall have general supervision
and direction over the business of the Corporation, subject, however, to the
control of the Board of Directors and of any duly authorized committee of
Directors. The Chief Executive Officer, in the absence of the Chairman, shall
preside at each meeting of the stockholders and of the Board of Directors. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors or by
the Bylaws to some other officer or agent of the Corporation, or shall be
required by law otherwise to be signed or executed; and, in general, shall
perform all duties incident to the office of Chief Executive Officer and such
other duties as from time to time may be assigned to him by the Board of
Directors or by the Bylaws. In the case of death of the Chief Executive Officer
or in the case of his absence or inability to act without having designated the
President to act temporarily in his place, the President shall perform the
duties of the Chief Executive Officer, unless the Board of Directors, by
resolution, provides otherwise. If the President shall be unable to act in
place of the Chief Executive Officer, the Chief Operating Officer, or if none,
the Vice Presidents, may exercise such powers and perform such duties as
provided above.
5.8 President. The President shall assist the Chief Executive Officer in
the management of and supervision and direction over the business and affairs
of the Corporation, subject, however, to the direction of the Chief Executive
Officer and the control of the Board of Directors. The President may, in the
absence of the Chairman and the Chief Executive Officer, preside, if present,
at each meeting of the stockholders and of the Board of Directors. The
President may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts and other instruments except in cases in which the signing and
execution thereof shall be expressly delegated by the Board of Directors or by
these Bylaws to some other officer or agent of the Corporation or shall be
required by statute otherwise to be signed or executed and, in general, shall
perform all duties incident to the office of the President and such other
duties as from time to time may be assigned to him by the Board of Directors,
by the Bylaws or by the Chief Executive Officer.
5.9 Chief Operating Officer. The Chief Operating Officer shall be the
chief operating officer of the Corporation, and shall assist the Chief
Executive Officer and the President in the active management of and supervision
and direction over the business and affairs of the Corporation, subject,
however, to the direction of the Chief Executive Officer and the President, the
Chief Operating Officer shall preside at each meeting of the stockholders and
of the Board of Directors. He may, with the Secretary or the Treasurer, sign
certificates for shares of capital stock of the Corporation. He may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments, except in cases where the signing and execution thereof shall
be expressly delegated by the Board of Directors or by the Bylaws to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed; and, in general, shall perform all duties incident to
the office of Chief Operating Officer and such other duties as from time to
time may be assigned to him by the Board of
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Directors, by the Bylaws, by the Chief Executive Officer or by the President.
5.10 Chief Financial Officer. The Chief Financial Officer shall be the
chief financial officer of the Corporation, and shall render to the Board of
Directors, whenever the Board of Directors may require, an account of the
financial condition of the Corporation; shall make, sign and file financial,
tax and similar reports to any state, federal or municipal government, agency
or department, or any self-regulatory organization; shall provide for the
continuous review of all accounts and reports; and shall perform such other
duties as from time to time may be assigned to him by the Board of Directors,
by the Bylaws or the Chief Executive Officer or President.
5.11 Vice Presidents. Each Vice President, Executive Vice President and
Senior Vice President shall have such powers and perform such duties as from
time to time may be assigned to such Vice President by the Board of Directors
or by the Chief Executive Officer or the President and shall perform such other
duties as may be prescribed in the Bylaws.
5.12 Secretary. The Secretary shall attend all meetings of the Board of
Directors and of the stockholders and shall record all the proceedings of the
meetings of the Board of Directors and of the stockholders in a book to be kept
for that purpose, and shall perform like duties for committees of the Board of
Directors, when required. The Secretary shall give, or cause to be given, notice
of all special meetings of the Board of Directors and of the stockholders and
shall perform such other duties as may be prescribed by the Board of Directors
or by the Chief Executive Officer, under whose supervision the Secretary shall
be. The Secretary shall have custody of the corporate seal of the Corporation,
and the Secretary, or an Assistant Secretary, shall have authority to impress
the same on any instrument requiring it, and when so impressed the seal 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 impress the seal of the Corporation and to attest the same by such
officer's signature. The Secretary or an Assistant Secretary may also attest all
instruments signed by the Chairman, the Chief Executive Officer or the
President. The Secretary shall have charge of all the books, records and papers
of the Corporation relating to its organization and management, shall see that
the reports, statements and other documents required by statute are properly
kept and filed and, in general, shall perform all duties incident to the office
of Secretary of a corporation and such other duties as may from time to time be
assigned to the Secretary by the Board of Directors, by the Bylaws, by the Chief
Executive Officer or by the President.
5.13 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board of Directors; against proper vouchers, cause such funds to be disbursed
by checks or drafts on the authorized depositories of the Corporation signed in
such manner as shall be determined by the Board of Directors and be responsible
for the accuracy of the amounts of all moneys so disbursed; regularly enter or
cause to be entered in books or other records maintained for the purpose full
and adequate account of all moneys received or paid for the account of the
Corporation; have the right to require from time to time reports or statements
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giving such information as the Treasurer may desire with respect to any and all
financial transactions of the Corporation from the officers or agents
transacting the same; render to the Chairman, the Chief Executive Officer, the
President or the Board of Directors, whenever the Chairman, the Chief Executive
Officer, the President or the Board of Directors shall require the Treasurer so
to do, an account of the financial condition of the Corporation and of all
financial transactions of the Corporation; exhibit at all reasonable times the
records and books of account to any of the Directors upon application at the
office of the Corporation where such records and books are kept; disburse the
funds of the Corporation as ordered by the Board of Directors; and, in general,
perform all duties incident to the office of Treasurer of a corporation and
such other duties as may from time to time be assigned to the Treasurer by the
Board of Directors, by the Bylaws or by the Chief Executive Officer, or by the
President.
5.14 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries
and Assistant Treasurers shall perform such duties as shall be assigned to them
by the Secretary or by the Treasurer, respectively, or by the Board of
Directors, by the Bylaws or by the Chief Executive Officer or by the President.
ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
6.1 INDEMNIFICATION.
(a) Each person who was or is a party or is threatened to be made a
party to or is involved (as a party, witness or otherwise), in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "Proceeding"), by reason of the
fact that he, or a person of whom he is the legal representative, is or was a
Director or officer of the Corporation or is or was serving at the request of
the Corporation as a Director or officer of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as a Director or officer or in any other
capacity while serving as a Director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
Corporation Law, as the same exists or may hereafter be amended or interpreted
(but, in the case of any such amendment or interpretation, only to the extent
that such amendment or interpretation permits the Corporation to provide
broader indemnification rights than were permitted prior thereto) against all
expenses, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties, and amounts paid or to be paid in settlement,
and any interest, assessments or other charges imposed thereon, and any
federal, state, local or foreign taxes imposed on any person indemnified hereby
as a result of the actual or deemed receipt of any payments under this Article
VI) reasonably incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding (hereinafter
"Losses"); provided, however, that except as to actions to enforce
indemnification rights pursuant to Section 3 of Article VI, the Corporation
shall
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indemnify any officer or Director seeking indemnification in connection with a
Proceeding (or part thereof) initiated by such person only if the Proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article VI shall be a contract
right.
(b) Each person who was or is a party or is threatened to be made a
party to or is involved (as a party, witness or otherwise), in any threatened,
pending or completed Proceeding, by reason of the fact that he, or a person of
whom he is the legal representative, is or was an employee or agent (other than
an officer or Director) of the Corporation or is or was serving at the request
of the Corporation as an employee or agent (other than an officer or Director)
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 the Proceeding is alleged action in an official capacity as an
employee or agent or in any other capacity while serving as an employee or
agent, may be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware Corporation Law, as the same exists or may
hereafter be amended or interpreted (but, in the case of any such amendment or
interpretation, only to the extent that such amendment or interpretation
permits the Corporation to provide broader indemnification rights than were
permitted prior thereto) against all Losses.
6.2 Authority to Advance Expenses. Expenses incurred by an officer or
Director (acting in his capacity as such) in defending a Proceeding shall be
paid by the Corporation in advance of the final disposition of such Proceeding,
provided, that if required by the Delaware Corporation Law, as amended, such
expenses shall be advanced only upon delivery to the Corporation of an
undertaking by or on behalf of such Director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VI or otherwise. Expenses
incurred by employees or other agents of the Corporation (or by the Directors
or officers not acting in their capacity as such, including service with
respect to employee benefit plans) may be advanced upon such terms and
conditions as the Board of Directors deems appropriate. Any obligation to
reimburse the Corporation for expense advances shall be unsecured and no
interest shall be charged thereon.
6.3 Right of Claimant to Bring Suit. If a claim under Section 1 or 2 of
Article VI is not paid in full by the Corporation within 30 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 successful in whole or in part, the claimant shall be
entitled to be paid also the expense (including attorneys' fees) of prosecuting
such claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending a Proceeding in
advance of its final disposition where the required undertaking has been
tendered to the Corporation) that the claimant has not met the standards of
conduct that make it permissible under the Delaware Corporation Law for the
Corporation to indemnify the claimant for the amount claimed. The burden of
proving such a defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the
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circumstances because he has met the applicable standard of conduct set forth
in the Delaware Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or stockholders)
that the claimant had 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.
6.4 Provisions Non-Exclusive. The rights conferred on any person by this
Article VI shall not be exclusive of any other rights that such person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, as may be amended from time to time, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office. To the extent that any provision of the Certificate of Incorporation,
agreement or vote of the stockholders or disinterested Directors is inconsistent
with these bylaws, the provision, agreement or vote shall take precedence.
6.5 Authority to Insure. The Corporation may purchase and maintain
insurance to protect itself and any Director, officer, employee or other agent
(collectively, "Agents") against any Losses, whether or not the Corporation
would have the power to indemnify the Agent against such Losses under the
applicable law or the provisions of these Bylaws.
6.6 Survival of Rights. The rights provided by this Article VI shall
continue as to a person who has ceased to be an Agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
6.7 Settlement of Claims. The Corporation shall not be liable to indemnify
any Agent under this Article VI for any amounts paid in settlement of any
action or claim effected without the Corporation's written consent, which
consent shall not be unreasonably withheld, or for any judicial award if the
Corporation was not given a reasonable and timely opportunity, at its expense,
to participate in the defense of such action.
6.8 Effect of Amendment. Any amendment, repeal or modification of this
Article VI shall not adversely affect any right or protection of any Agent
existing at the time of such amendment, repeal or modification.
6.9 Subrogation. In the event of payment under this Article VI, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
6.10 No Duplication of Payments. The Corporation shall not be liable under
this Article VI to make any payment in connection with any claim made against
the Agent to the extent the Agent has otherwise actually received payment
(under any insurance policy, agreement, vote or otherwise) of the amounts
otherwise indemnifiable hereunder.
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ARTICLE VII
CAPITAL STOCK
7.1 Certificates of Stock. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the
Corporation may, by resolution, provide that some or all of any or all classes
or series of its 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 signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or
Vice President, and by the Treasurer or an assistant treasurer, or the
Secretary or an assistant secretary, representing the number of shares
registered in certificate form. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent, or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
7.2 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the Corporation
or the whole or any part of any unissued balance of the authorized capital
stock of the Corporation held in its treasury may be issued, sold, transferred
or otherwise disposed of by resolution of the Board of Directors in such
manner, for such consideration and on such terms as the Board of Directors may
determine. Consideration for such shares of capital stock shall be expressed in
dollars, and shall not be less than the par value or stated value therefor, as
the case may be. The par value for shares, if any, shall be stated in the
Certificate of Incorporation, and the stated value for shares, if any, shall be
fixed from time to time by the Board of Directors.
7.3 Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any previously issued certificate alleged
to have been destroyed or lost if the owner makes an affidavit or affirmation
of that fact and produces such evidence of loss or destruction as the Board of
Directors may require. The Board of Directors, in its discretion, may as a
condition precedent to the issuance of a new certificate require the owner to
indemnify the Corporation (including providing the Corporation with a bond)
against any claim that may be made against the Corporation relating to the
allegedly destroyed or lost certificate.
7.4 Transfer of Shares. Subject to applicable law, shares of stock of
the Corporation may be transferred on its books upon the surrender to the
Corporation or its transfer agent of the certificates representing such shares,
if any, duly endorsed or accompanied by a written assignment or power of
attorney duly executed and with such proof of authority or authenticity of
signature as the Corporation or its transfer agent may reasonably require. In
that event, the surrendered certificates shall be canceled, new certificates
issued to the persons entitled to them, if any, and the transaction recorded on
the books of the Corporation.
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7.5 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of the other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of the State of Delaware.
7.6 Stock Ledger. An appropriate stock journal and ledger shall be kept by
the Secretary or such registrars or transfer agents as the Directors by
resolution may appoint in which all transactions in the shares of stock of the
Corporation shall be recorded.
7.7 Restriction on Transfer of Shares. Notice of any restriction on the
transfer of the stock of the Corporation shall be placed on each certificate of
stock issued or, in the case of uncertificated shares, contained in the notice
sent to the registered owner of such shares in accordance with the provisions
of the Delaware Corporation Law.
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ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors and set forth in the minutes of the meetings of the Directors. Said
fiscal year may be changed from time to time by the Board of Directors in its
discretion.
ARTICLE IX
DIVIDENDS
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation. Before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the Directors shall
think in the best interests of the Corporation, and the Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE X
AMENDMENTS
These Bylaws may be repealed, altered or amended or new Bylaws adopted at
any meeting of the stockholders, either annual or special, by the affirmative
vote of a majority of the stock entitled to vote at such meeting, unless a
larger vote is required by these Bylaws or the Certificate of Incorporation.
The Board of Directors shall also have the authority to repeal, alter or amend
these Bylaws or adopt new Bylaws (including, without limitation, the amendment
of any Bylaws setting forth the number of Directors who shall constitute the
whole Board of Directors) by unanimous written consent or at any annual,
regular or special meeting by the affirmative vote of a majority of the whole
number of Directors, subject to the power of the stockholders to change or
repeal such Bylaws; provided, that the Board of Directors shall not make or
alter any Bylaws fixing the qualifications, classifications, or term of office
of Directors.
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ARTICLE XI
MISCELLANEOUS
11.1 Gender. Whenever required by the context, the singular shall include
the plural, the plural the singular, and one gender shall include all genders.
11.2 Invalid Provision. The invalidity or unenforceability of any
particular provision of these Bylaws shall not affect the other provisions
herein, and these Bylaws shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
11.3 Governing Law. These Bylaws shall be governed by and construed in
accordance with the laws of the State of Delaware.
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