BY-LAWS
OF
DARBY ACQUISITION CORPORATION
ARTICLE I
OFFICES
The registered office of the corporation shall be established and
maintained in the City of Wilmington, County of New Castle, State of Delaware.
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 may require.
ARTICLE II
STOCKHOLDERS
1. Place of Meetings. Meetings of stockholders shall be held at the registered
office of the corporation or at such other place within or without the State of
Delaware as the board of directors shall authorize.
2. Annual Meetings. An annual meeting of the stockholders shall be held for the
election of directors on any business day, chosen by the board of directors,
within five months after the close of the corporation's preceding fiscal year,
at 10:00 o'clock A.M., local time. Any other proper business may be transacted
at the annual meeting.
3. Special Meetings. Special meetings of the stockholders may be called by the
board of directors or by the president or secretary. Business transacted at a
special meeting of the stockholders shall be confined to the purpose or purposes
set forth in the notice of such meeting.
4. Notice of Stockholders' Meetings. Written notice, stating the place, date and
hour of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given either personally or by
mail to each stockholder entitled to vote at such meeting, not less than ten nor
more than sixty days before the date of the meeting. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
5. Quorum of Shareholders. Unless the certificate of incorporation provides
otherwise, the holders of a majority of the shares entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at a
meeting of stockholders for the transaction of any business.
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6. Adjourned Meetings. The stockholders present at a meeting may adjourn the
meeting despite the absence of a quorum. When a determination of stockholders of
record entitled to notice of or to vote at any meeting of stockholders has been
made, such determination shall apply to any adjournment thereof, unless the
board of directors fixes a new record date for the adjourned meeting. 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 any business may be
transacted which might have been transacted at the original meeting. 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.
7. List of Stockholders. 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
election, 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.
8. Voting. Unless otherwise provided in the certificate of incorporation, all
elections of directors shall be by written ballot. Except as otherwise required
by applicable law or as provided in the certificate of incorporation, at each
and every meeting of the stockholders, every stockholder shall be entitled to
vote in person or by proxy appointed by an instrument in writing. Each
stockholder shall be entitled to one vote for each share of capital stock held
by such stockholder. Directors shall be elected by a plurality of the votes cast
at a meeting of the stockholders by the holders of shares entitled to vote in
the election, and any other corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the votes cast at a meeting of
stockholders by the holders of shares entitled to vote thereon; provided,
however, that where a separate vote by class is required, the affirmative vote
of the majority of shares of such class present in person or represented by
proxy at the meeting shall be the act of such class.
9. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. 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.
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10. Written Consent of Stockholders. Any action required by the General
Corporation Law of the State of Delaware to be taken at any annual or special
meeting of stockholders or any action which may be taken at any annual or
special meeting of stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
1. Board of Directors. Except as provided by the General Corporation Law of the
State of Delaware or the certificate of incorporation, the business and affairs
of the corporation shall be managed by or under the direction of its board of
directors.
2. Number of Directors. The number of directors initially constituting the whole
board shall be one (1). The number of directors may be increased or decreased by
action of a majority of the whole board subject to the limitation that no such
decrease in the number of directors shall shorten the term of any incumbent
director.
3. Election and Term of Directors. At each annual meeting of the stockholders,
the stockholders shall elect directors to hold office until the next annual
meeting. Each director shall hold office until the expiration of the term for
which he is elected, and until his successor has been elected and qualified, or
until his prior resignation or removal.
4. Vacancies and Newly Created Directorships. Unless otherwise provided in the
certificate of incorporation, vacancies and newly created directorships
resulting from any increase in the author ized number of directors elected by
all of the stockholders having the right to vote as a single class may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. A director elected to fill a vacancy shall hold
office until the next meeting of stockholders at which the election of directors
is in the regular order of business, and until his successor has been elected
and qualified.
5. Removal of Directors. 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.
6. Resignation of Directors. A director may resign at any time by giving written
notice to the corporation. Unless otherwise specified in the notice, the
resignation shall take effect upon receipt thereof by the corporation. The
acceptance of a resignation shall not be necessary to make it
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effective.
7. Quorum of Directors. Unless otherwise provided in the certificate of
incorporation, a majority of the whole board shall constitute a quorum for the
transaction of business.
8. Action of the Board. Unless otherwise required by law or the certificate of
incorporation, the vote of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the board of directors.
9. Place and Time of Board Meetings. The board of directors may hold its
meetings at the office of the corporation or at such other places, either within
or without the State of Delaware, as it may from time to time determine.
10. Regular Annual Meeting. A regular annual meeting of the board of directors
shall be held immediately following the annual meeting of stockholders at the
place of such annual meeting of stockholders.
11. Notice of Meetings of the Board; Adjournment. Regular meetings of the board
of directors may be held without notice at such time and place as it shall from
time to time determine. Special meetings of the board of directors shall be held
upon notice to the directors and may be called by the president upon three days'
notice to each director either personally or by mail or by wire; special
meetings shall be called by the president or by the secretary in a like manner
on written request of two directors. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. Notice of the adjournment shall be given to all directors who were not
present at the time of the adjournment and, unless such time and place are
announced at the meeting, to the other directors.
12. Chairman of Meetings of the Board. At all meetings of the board, a chairman
chosen by the board shall preside.
13. Action by Board of Directors by Written Consent. 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 or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.
14. Director and Committee Action by Conference Telephone. Members of the board
of directors, or any committee thereof, may participate in a meeting of such
board or committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation by such means shall constitute presence in person
at such meeting.
15. Committees of the Board. The board of directors may, by resolution passed by
a majority of
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the whole board, designate one or more committees, each committee to consist of
one or more of the directors. The board may designate one or more directors as
alternate members of any such committee, who may replace any absent or
disqualified member at any meeting of such committee.
16. Compensation of Directors. No compensation shall be paid to directors, as
such, for their services, but by resolution of the board, a fixed sum and
expenses of actual attendance at each regular or special meeting of the board
may be authorized. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
17. Interested Directors. (a) No contract or transaction between the corporation
and one or more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors or
the committee, and the board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
provided, however, that in the event the whole board shall consist of one
director, the contract or transaction shall be approved or ratified by vote of
the stockholders, as provided below; or
(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the board of directors, a
committee thereof, or the stockholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
1. Offices; Election; Term. The officers of the corporation shall be a
president, a secretary and a treasurer, and such other officers (including one
or more vice presidents) as the board of directors may determine, each of whom
shall be elected or appointed by the board of directors and shall have
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such duties, powers and functions as hereinafter provided. Any number of offices
may be held by the same person. Each officer shall hold office for the term for
which he is elected or appointed, and until his successor has been elected or
appointed and qualified, or until his earlier resignation or removal. Any
officer may resign at any time upon written notice to the corporation.
2. President. The president shall preside at all meetings of stockholders. He
shall be an ex officio member of all standing committees and shall, in general,
supervise, manage, and control all of the business and affairs of the
corporation, subject to the control of the board of directors. He shall have
power to sign certificates representing shares of the corporation and to sign
and execute all contracts and instruments of conveyance in the name of the
corporation, to sign checks, drafts, notes and orders for the payment of money,
and to appoint and discharge agents and employees of the corporation, subject to
the control of the board of directors. He shall perform all the duties usually
incident to the office of president.
3. Secretary. The secretary shall keep the minutes of all meetings of the board
of directors, and the minutes of all meetings of the stockholders, and also,
unless otherwise directed, the minutes of all meetings of committees in books
provided for that purpose. He shall give, or cause to be given, notice of all
meetings of stockholders and directors, and all other notices required by law or
by these by-laws, and in case of his absence or refusal so to do, any such
notice may be given by any person thereunto directed by the president or by the
directors or stockholders upon whose requisition the meeting is called. He shall
have charge of the corporate books and records. He shall have custody of the
seal of the corporation and affix the same to all instruments requiring it when
authorized by the directors or the president, and attest the same. He shall sign
with the president or vice-president all certificates representing shares of the
corporation. And he shall, in general, perform all the duties incident to the
office of secretary.
4. Treasurer. The treasurer shall have custody of all funds, securities,
evidences of indebtedness and other valuable documents of the corporation; when
necessary or proper he shall endorse on behalf of the corporation for collection
checks, notes and other obligations and shall deposit the same to the credit of
the corporation in such bank or banks or depository as the board of directors
may designate. He shall receive and give or cause to be given receipts and
acquittances for moneys paid in on account of the corporation and shall pay out
of the funds on hand all just debts of the corporation of whatever nature upon
maturity of the same; he shall enter or cause to be entered in books of the
corporation to be kept for that purpose full and accurate accounts of all moneys
received and paid out on account of the corporation, and whenever required by
the president or the directors, he shall render a statement of his accounts. He
shall keep or cause to be kept such other books as will show a true record of
the expenses, losses, gains, assets and liabilities of the corporation; he shall
at all reasonable times exhibit his books and accounts to any director of the
corporation upon application at the office of the corporation during business
hours; he shall sign with the president or a vice-president certificates
representing shares of the corporation; he shall perform all other duties and
acts incident to the office of treasurer. He shall, if required by the board of
directors, give the corporation security for the faithful performance of his
duties in such sum and with such surety as
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the board of directors may determine.
5. Vice-President. The vice-president, if there be one (or, if there be more
than one, the executive vice-president) shall, in the absence or disability of
the president, perform the duties and exercise the powers of the president. The
vice-president(s) shall have such powers and perform such duties as may be
delegated to him by the president or prescribed by the board of directors.
6. Assistant Secretaries and Assistant Treasurers. The assistant secretaries and
the assistant treasurers, if there be any, may sign with the president or
vice-president, certificates representing shares of the corporation. The
assistant secretaries and the assistant treasurers shall have such other powers
and shall perform such other duties as may be assigned to them by the board of
directors, the president or by the secretary or treasurer, respectively. In the
absence or disability of the secretary or the treasurer, the assistant secretary
or the assistant treasurer, respectively, shall perform all their duties and
exercise all their powers. The assistant treasurer may be required to give
security for the faithful performance of his duties in such sum and with such
surety as the board of directors may require.
7. Removal of Officers. Any officer elected or appointed by the board of
directors may be removed by the board of directors with or without cause.
8. Vacancies. If the office of any officer becomes vacant, the directors may
appoint any qualified person to fill such vacancy, who shall hold office for the
unexpired term of his predecessor and until his successor is elected or
appointed and qualified.
9. Compensation of Officers. The officers shall receive such salary or
compensation as may be determined by the board of directors. No officer shall be
precluded from receiving any compensation by reason of the fact that he is also
a director of the corporation.
ARTICLE V
SHARES
1. Certificates Representing Shares. The shares of the corporation shall be
represented by certificates in such form as shall be prepared or approved by the
board of directors and shall be numbered consecutively. The certificates shall
be signed by the president or vice-president, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation. 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.
2. Lost, Destroyed and Stolen Share Certificates. Any person claiming a
certificate representing
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shares to be lost, apparently destroyed or wrongfully taken shall make an
affidavit or affirmation of that fact, and, if required by the board of
directors, shall give the corporation an indemnity bond in such form and in such
amount as the board may determine, to protect it or any person injured by the
issue of the new certificate from any liability or expense which it or they may
incur by reason of the original certificate remaining outstanding, whereupon a
new certificate may be issued of the same tenor and for the same number of
shares as the one alleged to be lost, destroyed or wrongfully taken if the
claimant so requests prior to notice to the corporation that the lost,
apparently destroyed or wrongfully taken certificate has been acquired by a bona
fide purchaser.
3. Transfer of Shares. The certificated shares of the corporation shall be
transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer the
old certificates duly endorsed or accompanied by evidence of succession,
assignment or authority to transfer shall be surrendered to the corporation by
the delivery thereof to the person in charge of the list of stockholders and the
transfer books and ledgers, or the transfer agent, or to such other person as
the board may designate, by whom they shall be canceled, and new certificates
shall thereupon be issued. A record shall be made of each transfer, and whenever
any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of transfer if, when the
certificates are presented to the corporation for transfer, both the transferor
and transferee request the corporation to do so.
4. Record of Stockholders. The corporation shall keep at its office or at the
office of its transfer agent or registrar a record containing the names and
addresses of all stockholders, the number and class of shares held by each and
the dates when they respectively became the owners of record thereof in written
form or in any other form capable of being converted into written form within a
reasonable time. The corporation shall be protected in treating the persons in
whose names shares stand on the record of stockholders as the owners thereof for
all purposes, and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person
whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of the State of Delaware.
5. Fixing Record Date. 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, or to express consent to corporate action in writing
without a meeting, 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 may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. If no record
date is fixed, it shall be determined in accordance with the provisions of the
laws of the State of Delaware.
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ARTICLE VI
AMENDMENT AND REPEAL OF BY-LAWS
Except as provided in the certificate of incorporation, the by-laws may be
adopted, amended or repealed by vote of the stockholders entitled to vote in the
election of directors.
ARTICLE VII
MISCELLANEOUS PROVISIONS
1. Fiscal Year. The fiscal year of the corporation shall begin on the first day
of January and terminate on the thirty-first (31st) day of December in each
calendar year.
2. Dividends. The board of directors may, but shall not be required to, declare,
and the corporation may pay, dividends in cash, in property, or in shares of the
corporation's capital stock. Such dividends may be declared or paid out of
surplus, or, in case there shall be no such surplus, out of the corporation's
net profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year, upon such terms and conditions provided by the
certificate of incorporation or by law. The directors may set apart out of any
of the funds of the corporation available for dividends a reserve or reserves
for any proper purpose and may abolish any such reserve.
3. Seal of Corporation. The seal of the corporation shall be circular in form
and have inscribed thereon the name of the corporation, the year of its
organization, and the words "Corporate Seal" and "Delaware". The seal shall be
in the charge of the secretary. If and when so directed by the board of
directors or the president, a duplicate of the seal may be kept and used by the
secretary, assistant secretary, treasurer or assistant treasurer. The seal may
be used by causing it or a facsimile to be affixed or impressed or reproduced in
any other manner.
4. Waivers. Whenever notice is required to be given under any provision of the
General Corporation Law of the State of Delaware or of the certificate of
incorporation or these by-laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person 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. 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 unless
so required by the certificate of incorporation.
5. Execution of Instruments. All checks, drafts, notes, contracts or other
obligations of the corporation shall be signed or countersigned, executed,
verified, or acknowledged by the president or such of the officers of the
corporation or by such other person or persons as may be authorized by the board
of directors.
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6. Reference to Certificate of Incorporation. References in these by-laws to the
certificate of incorporation shall include all amendments thereto or changes
thereof unless specifically excepted.
ARTICLE VIII
INDEMNIFICATION
The corporation shall, to the full extent permitted by Section 145 of the
General Corporation Law of the State of Delaware, as amended from time to time,
indemnify all persons it may indemnify pursuant thereto.
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