BYLAWS
OF
INVICTA CORPORATION
ARTICLE I
SHAREHOLDERS
1. Annual Meeting
A meeting of the shareholders shall be held annually for the
election of directors and the transaction of other business on such date in each
year as may be determined by the Board of Directors, but in no event later than
100 days after the anniversary of the date of incorporation of the Corporation.
2. Special Meetings
Special meetings of the shareholders may be called by the
Board of Directors, Chairman of the Board or President and shall be called by
the Board upon the written request of the holders of record of a majority of the
outstanding shares of the Corporation entitled to vote at the meeting requested
to be called. Such request shall state the purpose or purposes of the proposed
meeting. At such special meetings the only business which may be transacted is
that relating to the purpose or purposes set forth in the notice thereof.
3. Place of Meetings
Meetings of the shareholders shall be held at such place
within or outside of the State of Delaware as may be fixed by the Board of
Directors. If no place is so fixed, such meetings shall be held at the principal
office of the Corporation.
4. Notice of Meetings
Notice of each meeting of the shareholders shall be given in
writing and shall state the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called. Notice of a special meeting shall
indicate that it is being issued by or at the direction of the person or persons
calling or requesting the meeting.
If, at any meeting, action is proposed to be taken which, if
taken, would entitle objecting shareholders to receive payment for their shares,
the notice shall include a statement of that purpose and to that effect.
A copy of the notice of each meeting shall be given,
personally or by first class mail, not less than ten nor more than fifty days
before the date of the meeting, to each shareholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to have been given when
deposited in the United States mail, with postage thereon prepaid, directed to
the shareholder at his address as it appears on the record of the shareholders,
or, if he shall have filed with the Secretary of the Corporation a written
request that notices to him or her be mailed to some other address, then
directed to him at such other address.
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When a meeting is adjourned to another time or place, it shall
not be necessary to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken. At the adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice under this
Section 4.
5. Waiver of Notice
Notice of a meeting need not be given to any shareholder who
submits a signed waiver of notice, in person or by proxy, whether before or
after the meeting. The attendance of any shareholder at a meeting, in person or
by proxy, without protesting prior to the conclusion of the meeting the lack of
notice of such meeting, shall constitute a waiver of notice by him or her.
6. Inspectors of Election
The Board of Directors, in advance of any shareholders'
meeting, may appoint one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so appointed, the person presiding at
a shareholders' meeting may, and on the request of any shareholder entitled to
vote thereat shall, appoint two inspectors. In case any person appointed fails
to appear or act, the vacancy may be filled by appointment in advance of the
meeting by the Board or at the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of such inspector at such meeting with
strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, and the validity and effect of proxies, and shall
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote at the meeting, count and
tabulate all votes, ballots or consents, determine the result thereof, and do
such acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting, or of any
shareholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, question or matter determined by them and shall
execute a certificate of any fact found by them. Any report or certificate made
by them shall be prima facie evidence of the facts stated and of any vote
certified by them.
7. List of Shareholders at Meetings
A list of the shareholders as of the record date, certified by the
Secretary or any Assistant Secretary or by a transfer agent, shall be produced
at any meeting of the shareholders upon the request thereat or prior thereto of
any shareholder. If the right to vote at any meeting is challenged, the
inspectors of election, or the person presiding thereat, shall require such list
of the shareholders to be produced as evidence of the right of the persons
challenged to vote at such meeting, and all persons who appear from such list to
be shareholders entitled to vote thereat may vote at such meeting.
8. Qualification of Voters
Unless otherwise provided in the Certificate of Incorporation, every
shareholder of record shall be
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entitled at every meeting of the shareholders to one vote for every share
standing in its name on the record of the shareholders.
Treasury shares as of the record date and shares held as of
the record date by another domestic or foreign corporation of any kind, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held as of the record date by the Corporation, shall not be
shares entitled to vote or to be counted in determining the total number of
outstanding shares.
Shares held by an administrator, executor, guardian,
conservator, committee or other fiduciary, other than a trustee, may be voted by
such fiduciary, either in person or by proxy, without the transfer of such
shares into the name of such fiduciary. Shares held by a trustee may be voted by
him or her, either in person or by proxy, only after the shares have been
transferred into his name as trustee or into the name of his nominee.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or proxy as
the bylaws of such corporation may provide, or, in the absence of such
provision, as the board of directors of such corporation may determine.
No shareholder shall sell his vote, or issue a proxy to vote,
to any person for any sum of money or anything of value except as permitted by
law.
9. Quorum of Shareholders
The holders of a majority of the shares of the Corporation issued and
outstanding and entitled to vote at any meeting of the shareholders shall
constitute a quorum at such meeting for the transaction of any business,
provided that when a specified item of business is required to be voted on by a
class or series, voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum for the transaction of such
specified item of business.
When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholders.
The shareholders who are present in person or by proxy and who
are entitled to vote may, by a majority of votes cast, adjourn the meeting
despite the absence of a quorum.
10. Proxies
Every shareholder entitled to vote at a meeting of the
shareholders, or to express consent or dissent without a meeting, may authorize
another person or persons to act for him by proxy.
Every proxy must be signed by the shareholder or its attorney.
No proxy shall be valid after the expiration of eleven months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided by
law.
The authority of the holder of a proxy to act shall not be
revoked by the incompetence or death of the shareholder who executed the proxy,
unless before the authority is exercised written notice of an adjudication of
such incompetence or of such death is received by the Secretary or any Assistant
Secretary.
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11. Vote or Consent of Shareholders
Directors, except as otherwise required by law, shall be
elected by a plurality of the votes cast at a meeting of shareholders by the
holders of shares entitled to vote in the election.
Whenever any corporate action, other than the election of
directors, is to be taken by vote of the shareholders, it shall, except as
otherwise required by law, be authorized by a majority of the votes cast at a
meeting of shareholders by the holders of shares entitled to vote thereon.
Whenever shareholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written consent,
setting forth the action so taken, signed by the holders of a majority of all
outstanding shares entitled to vote thereon. Written consent thus given by the
holders of a majority of all outstanding shares entitled to vote shall have the
same effect as a majority vote of shareholders cast at a meeting of
shareholders.
12. Fixing The Record Date
For the purpose of determining the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof,
or to express consent to or dissent from any proposal without a meeting, or for
the purpose of determining shareholders entitled to receive payment of any
dividend or the allotment of any rights, or for the purpose of any other action,
the Board of Directors may fix, in advance, a date as the record date for any
such determination of shareholders. Such date shall not be less than ten nor
more than fifty days before the date of such meeting, nor more than fifty days
prior to any other action.
When a determination of shareholders of record entitled to
notice of or to vote at any meeting of shareholders has been made as provided in
this Section, such determination shall apply to any adjournment thereof, unless
the Board of Directors fixes a new record date for the adjourned meeting.
ARTICLE II
BOARD OF DIRECTORS
1. Power of Board and Qualification of Directors
The business of the Corporation shall be managed by the Board
of Directors. Each director shall be at least eighteen years of age.
2. Number of Directors
The number of directors constituting the entire Board of
Directors shall be the number, not less than three nor more than seven, fixed
from time to time by a majority of the total number of directors
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which the Corporation would have, prior to any increase or decrease, if there
were no vacancies, provided, however, that no decrease shall shorten the term of
an incumbent director, and provided further that if all of the shares of the
Corporation are owned beneficially and of record by less than three
shareholders, the number of directors may be less than three but not less than
the number of shareholders. Until otherwise fixed by the directors, the number
of directors constituting the entire Board shall be three.
3. Election and Term of Directors
At each annual meeting of shareholders, directors shall be
elected to hold office until the next annual meeting and until their successors
have been elected and qualified or until their death, resignation or removal in
the manner hereinafter provided.
4. Quorum of Directors and Action by the Board
A majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and, except where otherwise provided
herein, the vote of a majority of the directors present at a meeting at the time
of such vote, if a quorum is then present, shall be the act of the Board.
Any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consent thereto by the
members of the Board or committee shall be filed with the minutes of the
proceedings of the Board or committee.
5. Meetings of the Board
An annual meeting of the Board of Directors shall be held in
each year directly after the annual meeting of shareholders. Regular meetings of
the Board shall be held at such times as may be fixed by the Board. Special
meetings of the Board may be held at any time upon the call of the President or
any two directors.
Meetings of the Board of Directors shall be held at such
places as may be fixed by the Board for annual and regular meetings and in the
notice of meeting for special meetings. If no place is so fixed, meetings of the
Board shall be held at the principal office of the Corporation. Any one or more
members of the Board of Directors may participate in meetings by means of a
conference telephone or similar communications equipment.
No notice need be given of annual or regular meetings of the
Board of Directors. Notice of each special meeting of the Board shall be given
to each director either by mail not later than noon, New York time, on the third
day prior to the meeting or by telegram, written message or orally not later
than noon, New York time, on the day prior to the meeting. Notices are deemed to
have been properly given if given: by mail, when deposited in the United States
mail; by telegram at the time of filing; or by messenger at the time of
delivery. Notices by mail, telegram or messenger shall be sent to each director
at the address designated by him for that purpose, or, if none has been so
designated, at his last known residence or business address.
Notice of a meeting of the Board of Directors need not be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without
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protesting, prior thereto or at its commencement, the lack of notice to any
director.
A notice, or waiver of notice, need not specify the purpose of
any meeting of the Board of 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 any
adjournment of a meeting to another time or place shall be given, in the manner
described above, to the 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.
6. Resignations
Any director of the Corporation may resign at any time by
giving written notice to the Board of Directors or to the President or to the
Secretary of the Corporation. Such resignation shall take effect at the time
specified therein; and unless otherwise specified therein the acceptance of such
resignation shall not be necessary to make it effective.
7. Removal of Directors
Any one or more of the directors may be removed for cause by
action of the Board of Directors. Any or all of the directors may be removed
with or without cause by vote of the shareholders.
8. Newly Created Directorships and Vacancies
Newly created directorships resulting from an increase in the
number of directors and vacancies occurring in the Board of Directors for any
reason except the removal of directors by shareholders may be filled by vote of
a majority of the directors then in office, although less than a quorum exists.
Vacancies occurring as a result of the removal of directors by shareholders
shall be filled by the shareholder. A director elected to fill a vacancy shall
be elected to hold office for the unexpired term of his predecessor.
9. Executive and Other Committees of Directors
The Board of Directors, by resolution adopted by a majority of
the entire Board, may designate from among its members an executive committee
and other committees each consisting of three or more directors and each of
which, to the extent provided in the resolution, shall have all the authority of
the Board, except that no such committee shall have authority as to the
following matters: (a) the submission to shareholders of any action that needs
shareholders' approval; (b) the filling of vacancies in the Board or in any
committee; (c) the fixing of compensation of the directors for serving on the
Board or on any committee; (d) the amendment or repeal of the bylaws, or the
adoption of new bylaws; (e) the amendment or repeal of any resolution of the
Board which, by its term, shall not be so amendable or repealable; or (f) the
removal or indemnification of directors.
The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent member or
members at any meeting of such committee.
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Unless a greater proportion is required by the resolution
designating a committee, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, and
the vote of a majority of the members present at a meeting at the time of such
vote, if a quorum is then present, shall be the act of such committee.
Each such committee shall serve at the pleasure of the Board
of Directors.
10. Compensation of Directors
The Board of Directors shall have authority to fix the
compensation of directors for services in any capacity.
11. Interest of Directors in a Transaction
Unless shown to be unfair and unreasonable as to the
Corporation, no contract or other transaction between the Corporation and one or
more of its directors, or between the Corporation and any other corporation,
firm association or other entity in which one or more of the directors are
directors or officers, or are financially interested, shall be either void or
voidable, irrespective of whether such interested director or directors are
present at a meeting of the Board of Directors, or of a committee thereof, which
authorizes such contract or transaction and irrespective of whether his or their
votes are counted for such purpose. In the absence of fraud any such contract
and transaction conclusively may be authorized or approved as fair and
reasonable by: (a) the Board of Directors or a duly empowered committee thereof,
by a vote sufficient for such purpose without counting the vote or votes of such
interested director or directors (although such interested director or directors
may be counted in determining the presence of a quorum at the meeting which
authorizes such contract or transaction), if the fact of such common
directorship, officership or financial interest is disclosed or known to the
Board or committee, as the case may be; or (b) the shareholders entitled to vote
for the election of dir ectors, if such common directorship, officership or
financial interest is disclosed or know to such shareholders.
Notwithstanding the foregoing, no loan, except advances in
connection with indemnification, shall be made by the Corporation to any
director unless it is authorized by vote of the shareholders without counting
any shares of the director who would be the borrower.
ARTICLE III
OFFICERS
1. Election of Officers
The Board of Directors, as soon as may be practicable after
the annual election of directors, shall elect a President and a Secretary, and
from time to time may elect or appoint such other officers as it may determine.
Any two or more offices may be held by the same person, except that the same
person may not hold the offices of President and Secretary. The Board of
Directors may also elect one or more Vice Presidents, Treasurer, Assistant
Secretaries and Assistant Treasurers.
2. Other Officers
The Board of Directors may appoint such other officers and
agents as it shall deem
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necessary who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board.
3. Compensation
The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
4. Term of Office and Removal
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. Unless otherwise provided in the resolution of the Board of Directors
electing or appointing an officer, his term of office shall extend to and expire
at the meeting of the Board following the next annual meeting of shareholders.
Any officer may be removed by the Board with or without cause, at any time.
Removal of an officer without cause shall be without prejudice to his contract
rights, if any, and the election or appointment of an officer shall not of
itself create contract rights.
5. President
The President shall be the chief executive officer of the
Corporation, shall have general and active management of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall also preside at all
meetings of the shareholders and the Board of Directors.
The President shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
6. Vice Presidents
The Vice Presidents, in the order designated by the Board of
Directors, or in the absence of any designation, then in the order of their
election, during the absence or disability of or refusal to act by the
President, shall perform the duties and exercise the powers of the President and
shall perform such other duties as the Board of Directors shall prescribe.
7. Secretary and Assistant Secretaries
The Secretary shall attend all meetings of the Board of
Directors and all meetings of the shareholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose, and shall perform like duties for the standing committees
when required. The Secretary shall give or cause to be given, notice of all
meetings of the shareholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, 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 affix the same to any
instrument requiring it and when so affixed, it may be attested by the
Secretary's signature or by the signature of such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature.
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The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order designated by the Board of Directors, or in
the absence of such designation then in the order of their election, in the
absence of the Secretary or in the event of the Secretary's inability or refusal
to act, shall perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
8. Treasurer and Assistant Treasurers
The Treasurer if one is appointed shall have the custody of
the corporate funds and securities; shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation; and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond 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 the office of Treasurer, and for the restoration to the
Corporation, in the case of the Treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in the possession or under the control of the Treasurer belonging
to the Corporation.
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order designated by the Board of Directors, or
in the absence of such designation, then in the order of their election, in the
absence of the Treasurer or in the event of the Treasurer's inability or refusal
to act, shall perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
9. Books and Records
The Corporation shall keep: (a) correct and complete books and
records of account; (b) minutes of the proceedings of the shareholders, Board of
Directors and any committees of directors; and (c) a current list of the
directors and officers and their residence addresses. The Corporation shall also
keep at its office in the State of Delaware or at the office of its transfer
agent or registrar in the State of Delaware, if any, a record containing the
names and addresses of all shareholders, the number and class of shares held by
each and the dates when they respectively became the owners of record thereof.
The Board of Directors may determine whether and to what
extent and at what times and places and under what conditions and regulations
any accounts, books, records or other documents of the Corporation shall be open
to inspection, and no creditor, security holder or other person shall have any
right to inspect any accounts, books, records or other documents of the
Corporation except as conferred by statute or as so authorized by the Board.
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10. Checks, Notes, etc.
All checks and drafts on, and withdrawals from the Corporation's
accounts with banks or other financial institutions, and all bills of exchange,
notes and other instruments for the payment of money, drawn, made, endorsed, or
accepted by the Corporation, shall be signed on its behalf by the person or
persons thereunto authorized by, or pursuant to resolution of, the Board of
Directors.
ARTICLE IV
CERTIFICATES AND TRANSFERS OF SHARES
1. Forms of Share Certificates
The share of the Corporation shall be represented by
certificates, in such forms as the Board of Directors may prescribe, signed by
the President or a Vice President and the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer. The shares may be sealed with the seal
of the Corporation or a facsimile thereof. The signatures of the officers upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation or its employee.
In case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the Corporation with the same effect as if he
were such officer at the date of issue.
Each certificate representing shares issued by the Corporation
shall set forth upon the face or back of the certificate, or shall state that
the Corporation will furnish to any shareholder upon request and without charge,
a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of shares, if more than one, authorized
to be issued and the designation, relative rights, preferences and limitations
of each series of any class of preferred shares authorized to be issued so far
as the same have been fixed, and the authority of the Board of Directors to
designate and fix the relative rights, preferences and limitations of other
series.
Each certificate representing shares shall state upon the face
thereof: (a) that the Corporation is formed under the laws of the State of
Delaware; (b) the name of the person or persons to whom issues; and (c) the
number and class of shares, and the designation of the series, if any, which
such certificate represents.
2. Transfers of Shares
Shares of the Corporation shall be transferable on the record
of shareholders upon presentment to the Corporation of a transfer agent of a
certificate or certificates representing the shares requested to be transferred,
with proper endorsement on the certificate or on a separate accompanying
document, together with such evidence of the payment of transfer taxes and com
pliance with other provisions of law as the Corporation or its transfer agent
may require.
3. Lost, Stolen or Destroyed Share Certificates
No certificate for shares of the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or wrongfully
taken, except, if and to the extent required by the Board of Directors upon: (a)
production of evidence of loss, destruction or wrongful taking; (b) delivery of
a bond indemnifying the Corporation and its agents against any claim that may be
made against it or them on
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account of the alleged loss, destruction or wrongful taking of the replaced
certificate or the issuance of the new certificate; (c) payment of the expenses
of the Corporation and its agents incurred in connection with the issuance of
the new certificate; and (d) compliance with other such reasonable requirements
as may be imposed.
ARTICLE V
OTHER MATTERS
1. Corporate Seal
The Board of Directors may adopt a corporate seal, alter such
seal at pleasure, and authorize it to be used by causing it or a facsimile to be
affixed or impressed or reproduced in any other manner.
2. Fiscal Year
The fiscal year of the Corporation shall be the twelve months
ending December 31st, or such other period as may be fixed by the Board of
Directors.
3. Amendments
Bylaws of the Corporation may be adopted, amended or repealed
by vote of the holders of the shares at the time entitled to vote in the
election of any directors. Bylaws may also be adopted, amended or repealed by
the Board of Directors, but any bylaws adopted by the Board may be amended or
repealed by the shareholders entitled to vote thereon as hereinabove provided.
If any bylaw regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of shareholders for the election of directors
the bylaw so adopted, amended or repealed, together with a concise statement of
the changes made.
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