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BYLAWS
OF
ARTECH FINANCIAL SERVICES, INC.
(A DELAWARE CORPORATION)
ARTICLE I
Offices and Fiscal Year
SECTION 1.01. REGISTERED OFFICE. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware until otherwise established by a vote of a majority of the board of
directors in office, and a statement of such change is filed in the manner
provided by statute.
SECTION 1.02. OTHER OFFICES. The corporation may also have
offices at such other places within or without the State of Delaware as the
board of directors may from time to time determine or the business of the
corporation requires.
SECTION 1.03. FISCAL YEAR. The fiscal year of the corporation
shall end on the 31st of December in each year.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. PLACE OF MEETING. All meetings of the
stockholders of the corporation shall be held at the registered office of the
corporation, or at such other place within or without the State of Delaware as
shall be designated by the board of directors in the notice of such meeting.
SECTION 2.02. ANNUAL MEETING. The board of directors may fix
the date and time of the annual meeting of the stockholders, but if no such date
and time is fixed by the board, the meeting for any calendar year shall be held
on the third Tuesday of May in such year, if not a legal holiday, and if a legal
holiday then on the next succeeding business day at 10:00 o'clock A.M., and at
said meeting the stockholders then entitled to vote shall elect directors and
shall transact such other business as may properly be brought before the
meeting.
SECTION 2.03. SPECIAL MEETINGS. Special meetings of the
stockholders of the corporation for any purpose or purposes for which meetings
may lawfully be called, may be called at any time by the chairman of the board,
a majority of the board of directors, the chief executive officer or the
president, or at the request, in writing, of stockholders owning individually or
together ten percent or more of the entire capital stock of the corporation
issued and outstanding and entitled to vote. At any time, upon written request
of any person or persons who have duly called a special meeting, which written
request shall state the purpose or purposes of the meeting, it shall be the duty
of the secretary to fix the date of the meeting to be held at such date and time
as the secretary may fix, not less than ten nor more than sixty days after the
receipt of the request, and to give due notice thereof. If the secretary shall
neglect or refuse to
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fix the time and date of such meeting and give notice thereof, the person or
persons calling the meeting may do so.
SECTION 2.04. NOTICE OF MEETINGS. Written notice of the place,
date and hour of every meeting of the stockholders, whether annual or special,
shall be given to each stockholder of record entitled to vote at the meeting not
less than ten nor more than sixty days before the date of the meeting. Every
notice of a special meeting shall state the purpose or purposes thereof.
SECTION 2.05. QUORUM, MANNER OF ACTING AND ADJOURNMENT. The
holders of a majority of the stock issued and outstanding (not including
treasury stock) and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute, by the
certificate of incorporation or by these bylaws. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At any such adjourned meeting, at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally notified. If the adjournment is for more than
thirty 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. When a quorum is present
at any meeting, the vote of the holders of the majority of the stock having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the applicable statute, the certificate of incorporation or these
bylaws, a different vote is required in which case such express provision shall
govern and control the decision of such question. Except upon those questions
governed by the aforesaid express provisions, the stockholders present in person
or by proxy at a duly organized meeting can continue to do business until
adjournment, notwithstanding withdrawal of enough stockholders to leave less
than a quorum.
SECTION 2.06. ORGANIZATION. At every meeting of the
stockholders, the chairman of the board, if there be one, or in the case of a
vacancy in the office or absence of the chairman of the board, one of the
following persons present in the order stated: the vice chairman, if one has
been appointed, the chief executive officer or the president, the vice
presidents in their order or rank, a chairman designated by the board of
directors or a chairman chosen by the stockholders entitled to cast a majority
of the votes which all stockholders present in person or by proxy are entitled
to cast, shall act as chairman, and the secretary, or, in his absence, an
assistant secretary, or in the absence of the secretary and the assistant
secretaries, a person appointed by the chairman, shall act as secretary.
SECTION 2.07. VOTING. Each stockholder shall at every meeting
of the stockholders be entitled to one vote in person or by proxy for each share
of capital stock having voting power held by such stockholder. No proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. Every proxy shall be executed in
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writing by the stockholder or by his duly authorized attorney-in-fact and filed
with the secretary of the corporation. A proxy, unless coupled with an interest,
shall be revocable at will, notwithstanding any other agreement or any provision
in the proxy to the contrary, but the revocation of a proxy shall not be
effective until notice thereof has been given to the secretary of the
corporation. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. 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. A
proxy shall not be revoked by the death or incapacity of the maker unless,
before the vote is counted or the authority is exercised, written notice of such
death or incapacity is given to the secretary of the corporation.
SECTION 2.08. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required above to the
corporation, written consent, signed by a sufficient number of holders or
members to take action are delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
SECTION 2.09. VOTING LISTS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting. The list shall be arranged in alphabetical order showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.10. JUDGES OF ELECTION. All elections of directors
shall be by written ballot, unless otherwise provided in the certificate of
incorporation; the vote upon any other matter need not be by ballot. In advance
of any meeting of stockholders, the board of directors
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may appoint judges of election, who need not be stockholders, to act at such
meeting or any adjournment thereof. If judges of election are not so appointed,
the chairman of any such meeting may, and upon the demand of any stockholder or
his proxy at the meeting and before voting begins shall, appoint judges of
election. The number of judges shall be either one or three, as determined, in
the case of judges appointed upon demand of a stockholder, by stockholders
present entitled to cast a majority of the votes which all stockholders present
are entitled to cast thereon. No person who is a candidate for office shall act
as a judge. In case any person appointed as judge fails to appear or fails or
refuses to act, the vacancy may be filled by appointment made by the board of
directors in advance of the convening of the meeting, or at the meeting by the
chairman of the meeting.
If judges of election are appointed as aforesaid, they shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes or ballots, hear and determine all
challenges and questions in any way arising in connection with the right to
vote, count and tabulate all votes, determine the result, and do such acts as
may be proper to conduct the election or vote with fairness to all stockholders.
If there be three judges, of election, the decision, act or certificate of a
majority shall be effective in all respects as the decision, act or certificate
of all.
On request of the chairman of the meeting or of any
stockholder or his proxy, the judges shall make a report in writing of any
challenge or question or matter determined by them, and execute a certificate of
any fact found by them.
ARTICLE III
Board of Directors
SECTION 3.01. POWERS. The board of directors shall have full
power to manage the business and affairs of the corporation; and all powers of
the corporation, except those specifically reserved or granted to the
stockholders by statute, the certificate of incorporation or these bylaws, are
hereby granted to and vested in the board of directors.
SECTION 3.02. NUMBER AND TERM OF OFFICE. The board of
directors shall consist of one or more members as determined from time to time
by resolution of the board of directors. Each director shall serve until the
next annual meeting of the stockholders and until his successor shall have been
elected and qualified, except in the event of his death, resignation or removal.
All directors of the corporation shall be natural persons, but need not be
residents of Delaware or stockholders of the corporation.
SECTION 3.03. VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. Whenever the holders of
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any class or classes of stock or series thereof are entitled to elect one or
more directors by the provisions of the certificate of incorporation, vacancies
and newly created directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so elected.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
SECTION 3.04. RESIGNATIONS. Any director of the corporation
may resign at any time by giving written notice to the chief executive officer
or the president or the secretary of the corporation. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 3.05. ORGANIZATION. At every meeting of the board of
directors, the chairman of the board, if there be one, or, in the case of a
vacancy in the office or absence of the chairman of the board, one of the
following officers present in the order stated: the vice chairman of the board,
if there be one, the chief executive officer or the president, the vice
presidents in their order of rank and seniority, or a chairman chosen by a
majority of the directors present, shall preside, and the secretary, or, in his
absence, an assistant secretary, or in the absence, of the secretary and the
assistant secretaries, any person appointed by the chairman of the meeting,
shall act as secretary.
SECTION 3.06. PLACE OF MEETING. The board of directors may
hold its meeting, both regular and special, at such place or places within or
without the State of Delaware as the board of directors may from time to time
appoint, or as may be designated in the notice calling the meeting.
SECTION 3.07. ORGANIZATION MEETING. The first meeting of each
newly elected board of directors shall be held at such time and place as shall
be fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order legally
to constitute the meeting, provided a quorum shall be present. In the event of
the failure of the stockholders to fix the time or place of such first meeting
of the newly elected board of directors, or in the event such meeting is not
held at the time and place so fixed by the stockholders, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
SECTION 3.08. REGULAR MEETINGS. Regular meetings of the board
of directors may be held without notice at such time and place as shall be
designated from time to time by
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resolution of the board of directors. If the date fixed for any such regular
meeting be a legal holiday under the laws of the State where such meeting is to
be held, then the same shall be held on the next succeeding business day, not a
Saturday, or at such other time as may be determined by resolution of the board
of directors. At such meetings, the directors shall transact such business as
may properly be brought before the meeting.
SECTION 3.09. SPECIAL MEETINGS. Special meetings of the board
of directors shall be held whenever called by the chief executive officer or the
president or by two or more of the directors. Notice of each such meeting shall
be given to each director by telephone or in writing at least 24 hours (in the
case of notice by telephone) or 48 hours (in the case of notice by telegram) or
five days (in the case of notice by mail) before the time at which the meeting
is to be held. Each such notice shall state the time and place of the meeting to
be so held.
SECTION 3.10. QUORUM, MANNER OF ACTING AND ADJOURNMENT. At all
meetings of the board a majority of the directors shall constitute a quorum for
the transaction of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the board.
SECTION 3.11. EXECUTIVE AND OTHER COMMITTEES. The board of
directors may, by resolution adopted by a majority of the whole board, designate
an executive committee and one or more other committees, each committee to
consist of two or more directors. The board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence of
disqualification of a member, and the alternate or alternates, if any,
designated for such member, of any committee the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member.
Any such committee to the extent provided in the resolution
establishing such committee shall have and may exercise all the power and
authority of the board of directors in the management of the business and
affairs of the corporation, including the power or authority to declare a
dividend or to authorize the issuance of stock, and may authorize the seal of
the corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
certificate of incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in Section 151 (a) of the
Delaware General Corporation Law ("DGCL"), fix any of the preferences or rights
of such
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shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), adopting an agreement of
merger or consolidation under Section 251 or 252 of the DGCL, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
bylaws of the corporation; and, unless the resolution expressly so provides, no
such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the DGCL. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors. Each committee so formed shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
SECTION 3.12. COMPENSATION OF DIRECTORS. Unless otherwise
restricted by the certificate of incorporation, the board of directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the board of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE IV
Notice - Waivers - Meetings
SECTION 4.01. NOTICE, WHAT CONSTITUTES. Whenever, under the
provisions of the statutes of Delaware or the certificate of incorporation or of
these bylaws, notice is required to be given to any director or stockholder, it
shall not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given in
accordance with Section 3.09 of Article III hereof.
SECTION 4.02. WAIVERS OF NOTICE. Whenever any written notice
is required to be given under the provisions of the certificate of
incorporation, these bylaws, or by statute, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Except in the case of a special meeting of stockholders, neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any
meeting, shall constitute a waiver of notice of such meeting, except where a
person attends a meeting for the
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express purpose of objecting to the transaction of any business because the
meeting was not lawfully called or convened.
SECTION 4.03. CONFERENCE TELEPHONE MEETINGS. One or more
directors may participate in a meeting of the board, or of a committee of the
board, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this section shall constitute presence in
person at such meeting.
ARTICLE V
Officers
SECTION 5.01. NUMBER, QUALIFICATIONS AND DESIGNATION. The
officers of the corporation shall be chosen by the board of directors and shall
be a chief executive officer and/or a president, one or more vice presidents, a
secretary, a treasurer, or officers acting in such capacities and such officers
as may be elected in accordance with the provisions of Section 5.03 of this
Article.
SECTION 5.02. ELECTION AND TERM OF OFFICE. The officers of the
corporation, except those elected by delegated authority pursuant to Section
5.03 of this Article, shall be elected annually by the board of directors, and
such other officer shall hold his office until his successor shall have been
elected and qualified, or until his earlier resignation or removal. Any
officer may resign at any time upon written notice to the corporation.
SECTION 5.03. SUBORDINATE OFFICERS, COMMITTEES AND AGENTS. The
board of directors may from time to time elect such other officers and appoint
such committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these bylaws, or as the board of directors may from
time to time determine. The board of directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the authority
and duties of such subordinate officers, committees, employees or other agents.
SECTION 5.04. THE CHAIRMAN, VICE-CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER. The chairman of the board, or in his absence, the
vice-chairman of the board, shall preside at all meetings of the stockholders
and of the board of directors, and shall perform such other duties as may from
time to time be assigned to them by the board of directors. The chairman shall
have the power to sign documents and instruments on behalf of the corporation in
the same manner that such power is conferred upon the president. The chief
executive officer shall have all of the same powers as the president.
SECTION 5.05. THE CHIEF EXECUTIVE OFFICER OR PRESIDENT. The
Chief executive officer or the president shall perform such duties and shall
have such rights and responsibilities as may from time to time be assigned to
him by the board of directors.
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SECTION 5.06. THE VICE PRESIDENTS. The vice president or vice
presidents, if any, shall perform the duties of the chief executive officer or
the president in his absence and such other duties as may from time to time be
assigned to them by the board of directors or by the chief executive officer or
the president.
SECTION 5.07. THE SECRETARY. The secretary, or an assistant
secretary, shall attend all meetings of the stockholders and of the board of
directors and shall record the proceedings of the stockholders and of the
directors and of committees of the board in a book or books to be kept for that
purpose; see that notices are given and records and reports properly kept and
filed by the corporation as required by law; be the custodian of the seal of the
corporation and see that it is affixed to all documents to be executed on behalf
of the corporation under its seal; and, in general, perform all duties incident
to the office of the secretary, and such other duties as may from time to time
be assigned to him by the board of directors or the chief executive officer or
the president.
SECTION 5.08. THE TREASURER. The treasurer, or an assistant
treasurer, shall have or provide for the custody of the funds or other property
of the corporation and shall keep a separate book account of the same to his
credit as treasurer; collect and receive or provide for the collection and
receipt of moneys earned by or in any manner due to or received by the
corporation; deposit all funds in his custody as treasurer in such banks or
other place of deposit as the board of directors may from time to time
designate; whenever so required by the board of directors, render an account
showing his transactions as treasurer and the financial condition of the
corporation; and, in general, discharge such other duties as may from time to
time be assigned to him by the board of directors of the chief executive officer
or the president.
SECTION 5.09. OFFICERS' BONDS. No officer of the corporation
need provide a bond to guarantee the faithful discharge of his duties unless the
board of directors shall by resolution so require a bond in which event such
officer shall give the corporation a bond (which shall be renewed if and as
required) in such sum and with such surety or sureties as shall be satisfactory
to the board of directors for the faithful performance of the duties of his
office.
SECTION 5.10. SALARIES. The salaries of the officers and
agents of the corporation elected by the board of directors shall be fixed
from time to time by the board of directors.
ARTICLE VI
Certificates of Stock, Transfer, Etc.
SECTION 6.01. ISSUANCE. Each stockholder shall be entitled
to a certificate or certificates for shares of stock of the corporation owned
by him upon his request therefor. The stock certificates of the corporation
shall be numbered and registered in the stock ledger and transfer books of
the corporation as they are issued. They shall be signed by or in the name of
the corporation by the chairperson or vice-chairperson of the board of
directors, or the president or a vice president and by the secretary or an
assistant secretary or the Treasurer or an assistant treasurer, and shall
bear the corporate seal, which may be a facsimile, engraved or printed. Any
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of or all the signatures upon such certificate may be a facsimile, engraved
or printed. In case any officer, transfer agent or registrar who has signed,
or whose facsimile signature has been placed upon, any share certificate
shall have ceased to be such officer, transfer agent or registrar, before the
certificate is issued, it may be issued with the same effect as if he such
officer, transfer agent or registrar at the date of its issue.
SECTION 6.02. TRANSFER. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignation or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. No transfer shall be made which would
be inconsistent with the provisions of Article 8, Title 6 of the Delaware
Uniform Commercial Code-Investment Securities.
SECTION 6.03. STOCK CERTIFICATES. Stock certificates of the
corporation shall be in such form as provided by statute and approved by the
board of directors. The stock record books and the blank stock certificates
books shall be kept by the secretary or by any agency designated by the board
of directors for that purpose.
SECTION 6.04. LOST, STOLEN, DESTROYED OR MUTILATED
CERTIFICATES. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such
manner as it shall require and/or to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be against the
corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
SECTION 6.05. RECORD HOLDER OF SHARES. The corporation
shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a person registered on
its books as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
SECTION 6.06. DETERMINATION OF STOCKHOLDERS OF RECORD. In
order that the corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, the
board of directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
board of directors, and which record date shall not be more than sixty or
less than ten days before the date of such meeting. If no record date is
fixed by the board of directors, the record date for determining stockholders
shall be at the close of business on the day next preceding the
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day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for
the adjourned meeting.
In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the board
of directors may fix a record date, which record date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the board of directors. If no record has been fixed by the board of
directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board
of directors is required by the DGCL, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested. If no record date has
been fixed by the board of directors and prior action by the board of directors
is required by the DGCL, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the board of directors adopts the
resolution taking such prior action.
In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights of the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the board of directors may fix a record date, which record date
shall not precede the date upon the resolution fixing the record date is
adopted, and which record date shall not be more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of the business on the day on which
the board of directors adopts the resolution relating thereto.
ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives
SECTION 7.01. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN
THIRD PARTY PROCEEDINGS. The corporation shall indemnify any person who was or
is an authorized representative of the corporation, and who was or is a party or
is threatened to be made a party to any corporation proceeding, by reason of the
fact that such person was or is an authorized representative of the corporation,
against expenses judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such third
party proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal third party proceeding (including
any action or investigation which could or does lead to a criminal third party
proceeding) had no reasonable cause to believe such conduct was unlawful.
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The termination of any third party proceeding by judgment, order, settlement,
indictment, conviction or upon a plea of nolo contendere or its equivalent,
shall not of itself create a presumption that the authorized representative did
not act in good faith and in a manner which such person reasonably believed to
be in or not opposed to, the best interests of the corporation, and, with
respect to any criminal third party proceeding, had reasonable cause to believe
that such conduct was unlawful.
SECTION 7.02. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN
CORPORATE PROCEEDINGS. The corporation shall indemnify any person who was or is
an authorized representative of the corporation and who was or is a party or is
threatened to be made a party to any corporate proceeding by reason of the fact
that such person was or is an authorized representative of the corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate action if such person acted in
good faith and in a manner reasonably believed to be in, or not opposed to, the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such corporate proceeding was pending
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such authorized representative is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
SECTION 7.03. MANDATORY INDEMNIFICATION OF AUTHORIZED
REPRESENTATIVES. To the extent that an authorized representative of the
corporation has been successful on the merits or otherwise in defense of any
third party or corporate proceeding or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
SECTION 7.04. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
Any indemnification under Section 7.01, 7.02 or 7.03 of this Article (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the authorized
representative is proper in the circumstances because such person has either met
the applicable standard of conduct set forth in Section 7.01 or 7.02 or has been
successful on the merits or otherwise as set forth in Section 7.03 and that the
amount requested has been actually and reasonably incurred. Such determination
shall be made:
(1) By the board of directors by a majority of a quorum
consisting of directors who were not parties to such third party or corporate
proceeding, or
(2) If such a quorum is not obtainable, or, even if
obtainable, a majority vote of such quorum so directs, by independent legal
counsel in a written opinion, or
(3) By the stockholders.
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SECTION 7.05. ADVANCING EXPENSES. Expenses actually and
reasonably incurred in defending a third party or corporate proceeding shall be
paid on behalf of a director by the corporation in advance of the final
disposition of such third party or corporate proceeding upon receipt of an
undertaking by or on behalf of the director to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this Article.
Expenses actually and reasonably incurred in defending a third
party or corporate proceeding shall be paid on behalf of an authorized
representative other than a director by the corporation in advance of the final
disposition of such third party or corporate proceeding as authorized by the
board of directors upon receipt of an undertaking by or on behalf of such
authorized representative to repay if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as authorized
in this Article.
The financial ability of any authorized representative to make
a repayment contemplated by this Section shall not be a prerequisite to the
making of an advance, and shall not be considered by the board of directors in
determining whether to authorize advancement of expenses.
SECTION 7.06. DEFINITIONS. For purposes of this Article:
(1) "authorized representative" shall mean a director or
officer of the corporation, or a person serving at the request of the
corporation as a director, officer, or trustee, of another corporation,
partnership, joint venture, trust or other enterprise;
(2) "corporation" shall include in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(3) "corporate proceeding" shall mean any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor or investigative proceeding by the corporation;
(4) "criminal third party proceedings" shall include any
action or investigation which could or does lead to a criminal third party
proceeding;
(5) "expenses" shall include attorney's fees and
disbursements;
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(6) "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan;
(7) "not opposed to the best interests of the
corporation" shall include such actions taken in good faith and in a manner the
authorized representative reasonably believed to be in the interest of the
participants and beneficiaries of a benefit plan;
(8) "other enterprises" shall include employee benefit
plans;
(9) "party" shall include the giving of testimony or
similar involvement;
(10) "serving at the request of the corporation" shall
include any service as a director, officer or employee of the corporation which
imposes duties on, or involves service by, such director, officer or employee
with respect to an employee benefit plan, its participants, or beneficiaries;
and
(11) "third party proceeding" shall mean any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of the
corporation.
SECTION 7.07. INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in such a capacity, or arising out of
his status as such, whether or not the corporation would have the power or the
obligation to indemnify such person against such liability under the provisions
of this Article.
SECTION 7.08. SCOPE OF ARTICLE. The indemnification of
authorized representatives and advancement of expenses, as authorized by the
preceding provisions of this Article, shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any statute, agreement, vote of stockholders or disinterested
directors or otherwise, both as to the action in an official capacity and as to
action in another capacity. The indemnification and advancement of expenses
provided by or granted pursuant to this Article shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be an
authorized representative and shall inure to the benefit of the heirs, executors
and administrators of such a person.
SECTION 7.09. RELIANCE ON PROVISIONS. Each person who shall
act as an authorized representative of the corporation shall be deemed to be
doing so in reliance upon rights of indemnification provided by this Article.
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ARTICLE VIII
General Provisions
SECTION 8.01. 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 of the corporation, 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 conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 8.02. ANNUAL STATEMENTS. The board of directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
SECTION 8.03. CONTRACTS. Except as otherwise provided in these
bylaws, the board of directors may authorize any officer or officers including
the chairman and vice chairman of the board of directors, or any agent or
agents, to enter into any contract or to execute or deliver any instrument on
behalf of the corporation and such authority may be general or confined to
specific instances.
SECTION 8.04. CHECKS. All checks, notes, bills of exchange or
other orders in writing shall be signed by such person or persons as the board
of directors may from time to time designate.
SECTION 8.05. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the corporation, the year of its organization and
the words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
SECTION 8.06. DEPOSITS. All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositories as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
SECTION 8.07. CORPORATE RECORDS. At least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
and number of shares registered in the name of each stockholder, shall be open
to the examination of any stockholder, for any purpose germane 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
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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.
Every stockholder shall, upon written demand, under oath
stating the purpose thereof, have a right to examine, in person or by agent or
attorney, during the usual hours for business, for any proper purpose, the stock
ledger, books or records of account, and records of the proceedings of the
stockholders and directors, and make copies or extracts therefrom. A proper
purpose shall mean a purpose reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other agent shall be the
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand under
oath shall be directed to the corporation at its registered office in Delaware
or at its principal place of business. Where the stockholder seeks to inspect
the books and records of the corporation, other than its stock ledger or list of
stockholders, the stockholder shall first establish (1) compliance with the
provisions of this section respecting the form and manner of making demand for
inspection of such document; and (2) that the inspection sought is for a proper
purpose. Where the stockholder seeks to inspect the stock ledger or list of
stockholders of the corporation and has complied with the provisions of this
section respecting the form and manner of making demand for inspection of such
documents, the burden of proof shall be upon the corporation to establish the
inspection sought is for an improper purpose.
Any director shall have the right to examine the corporation's
stock ledger, a list of its stockholders and its other books and records for a
purpose reasonably related to his position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger and the stock list and to make copies or extracts therefrom. The
court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the court
may deem just and proper.
SECTION 8.08. AMENDMENT OF BYLAWS. These bylaws may be
altered, amended or repealed or new bylaws may be adopted by a majority of the
shares entitled to vote thereon or by a majority of the whole board of
directors, when such power is conferred upon the board of directors by the
certificate of incorporation, at any regular meeting of the stockholders or of
the board of directors, or at any special meeting of the stockholders or the
board of directors, if notice of such alteration, amendment, repeal or adoption
of new bylaws be contained in the notice of such special meeting.
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[INSERT SENTENCE TO INDICATE THE SECTION AMENDED, BY WHOM AND THE DATE OF
AMENDMENT.]
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