AMENDED AND RESTATED BY-LAWS
OF
GB HOLDINGS INC. DATED AS OF SEPTEMBER 29, 2000
ARTICLE 1
OFFICES
Section 1.1. OTHER OFFICES. The corporation may also have offices, and
keep the books and records of the corporation, at such other places, either
within or without the State of Delaware, as the board of directors may from time
to time determine or as the business of the corporation may require, except as
may otherwise be required by law.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1. PLACE OF MEETINGS. All meetings of the stockholders shall
be held at the office of the corporation or at such other places as may be fixed
from time to time by the board of directors, either within or without the State
of Delaware, and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2.2. ANNUAL MEETINGS. Annual meetings of stockholders,
commencing with the year 1994, shall be held at the time and place to be
selected by the board of directors. If the day is a legal holiday, then the
meeting shall be held on the next following business day. At the meeting, the
stockholders shall elect a board of directors by written ballot and transact
such other business as may properly be brought before the meeting.
Section 2.3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
Section 2.4. VOTING LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders
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entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, 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 2.5. SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chairman of the board or the
president of the corporation and shall be called by the president or the
secretary at the request in writing of a majority of the board of directors, or
by the holders of ten percent (10%) or more of the outstanding shares of stock
of the corporation. Such request shall state the purpose or purposes of the
proposed meeting.
Section 2.6. NOTICE OF SPECIAL MEETINGS. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice.
Section 2.7. QUORUM. The holders of a majority of the stock issued and
outstanding 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 may otherwise be provided by statute or by
the certificate of incorporation.
If a quorum is present at a meeting of stockholders, the stockholders
represented in person or by proxy at the meeting may conduct such business as
may be properly brought before the meeting until it is finally adjourned, and
the subsequent withdrawal from the meeting of any stockholder or the refusal of
any stockholder represented in person or by proxy to vote shall not affect the
presence of a quorum at the meeting, except as may otherwise be provided by law
or the certificate of incorporation.
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If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the chairman of the meeting or the holders of a
majority of the capital stock issued and outstanding and 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 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 (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, or if these
Bylaws otherwise require, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.8. ORDER OF BUSINESS. At each meeting of the stockholders,
one of the following persons, in the order in which they are listed (and in the
absence of the first, the next, and so on), shall serve as chairman of the
meeting: chairman of the board, president, vice presidents (in the order of
their seniority if more than one) and secretary. The order of business at each
such meeting shall be as determined by the chairman of the meeting. Except as
may otherwise be provided by statute, the certificate of incorporation or these
Bylaws, the chairman of the meeting shall have, in his sole discretion, the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts and things as are necessary or desirable for the proper conduct
of the meeting, including, without limitation, the establishment of procedures
for the maintenance of order and safety, limitations on the time allotted to
questions or comments on the affairs of the corporation, restrictions on entry
to such meeting after the time prescribed for the commencement thereof, and the
opening and closing of the voting polls. Only stockholders of record will be
permitted to present motions from the floor at any meeting of stockholders.
Section 2.9. MAJORITY VOTE. When a quorum is present at any meeting,
the vote of the holders of a 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
statutes, 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.
Section 2.10. METHOD OF VOTING. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each
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share of the capital stock having voting power held by such stockholder (i) at
the time fixed pursuant to Section 8. 5 of these By Laws as the record date for
the determination of stockholders entitled to vote at such meeting, or (ii) if
no such record date shall have been fixed, then at the close of business on the
date next preceding the day on which notice thereof shall be given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held, but no proxy shall be voted on or after three (3)
years from its date, unless the proxy provides for a longer period.
Section 2.11. ACTION OF STOCKHOLDERS BY WRITTEN CONSENT WITHOUT
MEETINGS. Unless otherwise provided in the certificate of incorporation, any
action required or permitted to be taken by stockholders for or in connection
with any corporate action may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing setting forth the action
so taken shall be (i) 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 and (ii) 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
stockholders are recorded. Delivery made to the corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who
signs the consent.
If action is taken by less than unanimous consent of stockholders and
in accordance with the foregoing, there shall be filed with the records of the
meetings of stockholders the writing or writings comprising such less than
unanimous consent. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous consent shall be given to those who have not
consented in writing, and a certificate signed and attested to by the secretary
that such notice was given shall be filed with the records of the-meetings of
the stockholders.
If action is taken by unanimous consent of stockholders, the writing
or writings comprising such unanimous consent shall be filed with the records of
the meetings of stockholders.
In the event that the action which is consented to is such as would
have required the filing of a certificate under any of the provisions of the
General Corporation Law of the State of Delaware (the "DGCL"),
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as amended, if such action had been voted upon by the stockholders at a meeting
thereof, the certificate filed under such provisions shall state (i)
that written consent has been given under Section 228 of the DGCL, as amended,
in lieu of stating that the stockholders have voted upon the corporate action in
question, if such last mentioned statement is so required, and (ii) that written
notice has been given as provided in such Section 228.
ARTICLE 3
DIRECTORS
Section 3.1. GENERAL POWERS. The business and affairs of the
corporation shall be managed by or under the direction of the board of
directors, which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by law or by the certificate of incorporation
of the corporation or by these Bylaws directed or required to be exercised or
done by the stockholders.
Section 3.2. NUMBER OF DIRECTORS. The number of directors constituting
the board shall be such number as shall be from time to time specified by
resolution of the board of directors; provided, however, that no director's term
shall be shortened by reason of a resolution reducing the number of directors;
and further provided that the number of directors constituting the initial board
of directors shall be 6 and shall remain such number unless and until changed by
resolution of the board of directors on or after the date hereof.
Section 3.3. ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of stockholders at which a
quorum is present to hold office until the next annual meeting. The persons
receiving a plurality of the votes of the shares represented in person or by
proxy and entitled to vote on the election of directors shall be, elected
directors. Except as may otherwise be provided by law, the certificate of
incorporation or these Bylaws, directors need not be stockholders nor residents
of the State of Delaware. Except as may otherwise be provided by law, the
certificate of incorporation or these Bylaws, each director, including a
director elected to fill a vacancy, shall hold office until the next annual
meeting and until his successor is elected and qualified or until his earlier
death, disqualification, resignation or removal.
Section 3.4. FIRST MEETINGS. 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
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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 3.5. REGULAR MEETINGS. Regular meetings of the board of
directors may be held without notice (except as may otherwise be required by law
or these Bylaws) at such times and at such places as shall from time to time be
determined by the board.
Section 3.6. SPECIAL MEETINGS. Special meetings of the board of
directors may be called by the chairman of the board or the president, and shall
be called by the president or secretary on the written request of two (2)
directors unless the board consists of only one director, in which case special
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 3.7. QUORUM; MAJORITY Vote. At all meetings of the board, a
majority of the entire board of 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.
Section 3.8. ACTION WITHOUT MEETING. 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 may be taken without a
meeting, if all members of the board consent in writing to the adoption of a
resolution authorizing the action, and the writing or writings are filed with
the minutes of the proceedings of the board.
Section 3.9. TELEPHONE AND SIMILAR MEETINGS. Unless otherwise
restricted by the certificate of incorporation or these Bylaws, members of the
board of directors may participate in any meeting of the board of directors by
means of conference telephone or similar communications equipment by means of
which all
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persons participating in the meeting can hear each other. Participation by such
means shall constitute presence in person at a meeting of the board.
Section 3.10. NOTICE OF MEETINGS. Unless otherwise required by law or
specified herein, notice of regular meetings of the board of directors or of any
adjourned meeting thereof need not be given. Notice of each special meeting of
the board (and of each regular meeting for which notice shall be required) shall
be sailed to each director, addressed to such director at such director's
residence or usual place of business, at least two (2) days before the day on
which the meeting is to be held or shall be sent to such director at such place
by telex, cable, facsimile or telegram or be given personally or by telephone,
not later than the day before the meeting is to be held, but notice need not be
given to any director who shall, either before or after the meeting, submit a
signed written waiver of such notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to such
director. Every such notice shall state the time and place but need not state
the purpose of the meeting.
Section 3.11. RULES AND REGULATIONS. The board of directors may adopt
such rules and regulations not inconsistent with the provisions of law, the
certificate of incorporation of the corporation or these Bylaws for the conduct
of its meetings and management of the affairs of the corporation as the board
may deem proper.
Section 3.12. RESIGNATIONS. Any director of the corporation may at any
time resign by' giving written notice to the board of directors, the chairman of
the board, the president or the secretary of the corporation. Such resignation
shall take effect at the time specified therein or, if the time be not
specified, upon receipt thereof; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 3.13. REMOVAL OF DIRECTORS. Unless otherwise restricted by
statute, by the certificate of incorporation or by these Bylaws, 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; provided, however, that when the holders of any class or series of
stock are entitled by the certificate of incorporation to elect one (1) or more
directors, then, in respect to the removal without cause of a director or
directors so elected, the required majority vote shall be of the holders of the
outstanding shares of such class or series and not of the outstanding shares as
a whole.
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Section 3.14. VACANCIES. Except as may otherwise be provided by, law,
the certificate of incorporation or these By Laws, any vacancies on the board of
directors resulting from death, disqualification, resignation, removal or other
cause, and newly created directorships resulting from any increase in the number
of directors shall be filled by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the board
of directors, or by a sole remaining director. Any director elected or chosen in
accordance with the preceding sentence of this Section 3.15 shall hold office
for the remainder of the term of the directorship to which he was appointed or
until his successor shall have been elected and qualified or until his earlier
death, disqualification, resignation or removal. Unless the certificate of
incorporation or these Bylaws provide otherwise, when one or more directors
shall resign from the board of directors, effective at future date, the majority
of directors then in office, including those who have so resigned, shall have
the power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective.
Section 3.15. COMPENSATION OF DIRECTORS. Unless otherwise restricted by
the certificate of incorporation or these Bylaws, 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 4
EXECUTIVE AND OTHER COMMITTEES
Section 4.1. EXECUTIVE AND OTHER COMMITTEES. The board of directors
may, by resolution adopted by a majority of the entire board, designate from
time to time one (1) or more of its members to constitute members or alternate
members of an executive committee or one or more other committees, which
committees shall have and may exercise, between meetings of -the board, all the
powers and authority of the board in the management of the business and affairs
of the corporation, including, if any such committee is so empowered and
authorized by resolution adopted by a majority of the entire board, the power
and authority to declare a dividend, to
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authorize the issuance of stock and to adopt a certificate of ownership and
merger pursuant to Section 253 of the DGCL, as amended, and may authorize the
seal of the corporation to be affixed to all papers which may require it, except
that no such committee shall have such power or authority with reference to:
(a) amending the certificate of incorporation of the
corporation (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 pursuant to authority, if any,
expressly vested in the board by the provisions of the certificate of
incorporation, (i) fix the designations and any of the preferences or
rights of such 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, or (ii) fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of
any series);
(b) adopting an agreement of merger or consolidation involving
the corporation;
(c) recommending to the stockholders the sale, lease or
exchange of all or substantially all of the property and
assets of the corporation;
(d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) adopting, amending or repealing any Bylaw;
(f) filling vacancies on the board;
(g) fixing the compensation of directors for serving on the
board or on any committee of the board, including the
executive committee; or
(h) amending or repealing any resolution of the board which by
its terms may be amended or repealed only by the board.
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Section 4.2. PROCEDURE; MEETINGS; QUORUM. Regular meetings of the
executive committee or any other committee of the board of directors, of which
no notice shall be necessary, may be held at such times and places as shall be
fixed by resolution adopted by a majority of the members thereof. Special
meetings of the executive committee or any other committee of the board shall be
called at the request of any member thereof. Notice of each special meeting of
the executive committee or any other committee of the board shall be sent by
mail, telex, cable, facsimile, telegram or telephone, or be delivered personally
to each member thereof not later than the day before the day on which the
meeting is to be held, but notice need not be given to any member who shall,
either before or after the meeting, submit a signed written waiver of such
notice or who shall attend such meeting without protesting, prior to or at its
commencement, the lack of such notice to such member. Any special meeting of the
executive committee or any other committee of the board shall be a legal meeting
without any notice thereof having been given, if all the members thereof shall
be present thereat. Notice of any adjourned meeting of any committee of the
board need not be given. The executive committee or any other committee of the
board may adopt such rules and regulations not inconsistent with the provisions
of law, the certificate of incorporation of the corporation or these Bylaws for
the conduct of its meetings as the executive committee or any other committee of
the board may deem proper. A majority of the executive committee or any other
committee of the board shall constitute a quorum for the transaction of business
at any meeting, and the vote of a majority of the members thereof present at any
meeting at which a quorum is present shall be the act of such committee. In the
absence or disqualification of a member, the remaining members, whether or not a
quorum may fill a vacancy. The executive committee or any other committee of the
board of directors shall keep written minutes of its proceedings, a copy of
which is to be filed with the secretary of the corporation, and shall report on
such proceedings to the board.
Section 4.3. COMPENSATION Members of special or standing committees may
be allowed compensation if the board of directors shall so determine pursuant to
Section 3.16 of these Bylaws.
Section 4.4 ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Unless the board of directors, the certificate of incorporation or
these Bylaws shall otherwise provide, any action required or permitted to be
taken by any committee may be taken without a meeting if all members of the
committee consent in writing to the adoption of a resolution authorizing the
action, and the writing or writings are filed with the minutes of the
proceedings of the committee. Unless the board of directors, the certificate of
incorporation or these Bylaws shall otherwise provide, any one or more members
of any such committee may
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participate in any meeting of the committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation by such means shall constitute
presence in person at a meeting of the committee.
Section 4.5. CHANGES IN COMMITTEES; RESIGNATIONS; REMOVALS. The board
shall have powers, by the affirmative vote of a majority of the authorized
number of directors, at any time to change the members of, to fill vacancies in,
and to discharge any committee of the board. Any member of any such committee
may resign at any time by giving notice to the corporation, provided, however,
that notice to the board, the chairman of the board, the president, the chairman
of such committee or the secretary shall be deemed to constitute notice to the
corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective. Any
member of any such committee may be removed at any time, with or without cause,
by the affirmative vote of a majority of 'the authorized number of directors at
any meeting of the board called for that purpose.
ARTICLE 5
NOTICES
Section 5.1. METHOD. Whenever, under the provisions of the statutes or
of 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 by telex, cable, facsimile or telegram.
Section 5.2. WAIVER. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. 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
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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 or these Bylaws.
ARTICLE 6
OFFICERS
Section 6.1. ELECTION; QUALIFICATION. The officers of the corporation
shall be chosen annually by the board of directors at its first regular meeting
held after the annual meeting of stockholders or as soon thereafter as
conveniently practicable and shall be a president, one or more vice presidents
and a secretary. The board of directors may also choose as officers a chairman
of the board, one or more vice chairmen of the board, a treasurer, one or more
assistant secretaries and assistant treasurers and such other officers and
agents as it shall deem necessary. Any number of offices may-be held by the same
person, unless the certificate of incorporation or these Bylaws otherwise
provide. The chairman of the board and any vice chairman of the board shall be
elected from among the directors. With the foregoing exception, none of the
other officers need be a director, and none of the officers need be a
stockholder of the corporation unless otherwise required by the certificate of
incorporation.
Section 6.2. SALARY. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors.
Section 6.3. TERM; REMOVAL. The officers of the corporation shall hold
office until their successors are chosen and qualify or until their death or the
effective date of their removal or resignation (or until he shall cease to be a
director in the case of the chairman of the board or any vice chairman of the
board). Any officer elected or appointed by the board of directors may be
removed, with or without cause, at any time by the affirmative vote of a
majority of the board of directors.
Section 6.4. RESIGNATION. Subject at all times to the right of removal
as provided in Section 6.3 of this Article 6, any officer may resign at any time
by giving notice to the board of directors, the chairman of the board, the
president or the secretary of the corporation. Any such resignation shall take
effect at the date of receipt of such notice or at any later date specified
therein; provided that the president or, in the event of the
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resignation of the president, the board of directors may designate an effective
date for such resignation which is earlier than the date specified in such
notice but which is not earlier than the date of receipt of such notice; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 6.5. VACANCIES. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term by the board of directors and, in the case of any vacancy in an
office other than the office of chairman of the board or vice chairman of the
board (if any) or president, by the president.
Section 6.6. CHAIRMAN OF THE BOARD. The chairman of the board shall, if
there be such an officer, preside at meetings of the board of directors and
preside at meetings of the stockholders. The chairman of the board shall counsel
with and advise the president and perform such other duties as the president or
the board or the executive committee may from time to time determine. Except as
otherwise provided by resolution of the board, the chairman of the board shall
be ex-officio a member of all committees of the board. The chairman of the board
may sign and execute in the name of the corporation any and all deeds,
mortgages, bonds, contracts, agreements, certificates or other instruments or
documents authorized by the board or any committee thereof "powered to authorize
the same.
Section 6.7. VICE CHAIRMAN OF THE BOARD. In the absence of the chairman
of the board or, in the event of his inability or refusal to act, the vice
chairman (or in the event there be more than one vice chairman, the vice
chairmen in the order designated by the directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the chairman of the board, and when so acting shall have all the powers of and
be subject to all the restrictions upon the chairman of the board. The vice
chairman shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe. Any vice chairman may sign and
execute in the name of the corporation any and all deeds, mortgages, bonds,
contracts, agreements, certificates or other instruments or documents authorized
by the board or any committee thereof empowered to authorize the same.
Section 6.8. PRESIDENT. The president shall be the chief executive
officer of the corporation, shall preside at all meetings of the stockholders
and the board of directors if there shall be no chairman or vice chairman of the
board or if the chairman or vice chairman of the board shall not be present or
shall be unable or unwilling to
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act at any such meeting, 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. He shall execute deeds, mortgages,
bonds, contracts, agreements, certificates or other instruments or documents
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.
Section 6.9. VICE PRESIDENTS. In the absence of the president, the
chairman of the board and the vice chairmen of the board or, in the event of
their inability or refusal to act, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated by the
directors or, in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
Section 6. 10. SECRETARY. The secretary shall attend all meetings of
the board of directors and all meetings of the stockholders 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. He shall give, or cause to be given, notice
of all meetings of the stockholders 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 he shall be. He shall have
custody of the corporate seal of the corporation and he, 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 his 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.
Section 6. 11. ASSISTANT SECRETARY. The assistant secretary, or if
there shall be more than one, the assistant secretaries in the order determined
by the board of directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the secretary or in the event
of his inability or refusal to act, 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.
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Section 6.12. TREASURER. The treasurer shall have the custody of the
corporate funds and securities and 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. He shall disburse the funds of the corporation 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, he 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 his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 6.13. ASSISTANT TREASURER. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, 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.
ARTICLE 7
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 7.1. THIRD-PARTY ACTIONS. The corporation shall indemnify to
the fullest extent authorized or permitted by Section 145 of the DGCL any person
(his heirs, executors and administrators) who was or is a party or is threatened
to be made a party to 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) by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director or officer or in any other
capacity for another corporation, partnership, joint venture, trust or other
enterprise, against all expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not
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opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person 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 action or proceeding, that such person had reasonable cause to
believe that his or her conduct was unlawful.
The corporation may indemnify any employee or agent of the corporation,
or any employee or agent serving at the request of the corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, in the manner and to the extent that it shall indemnify any
director or officer under this Section 7.1.
Section 7.2. DERIVATIVE ACTIONS. The corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person 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 all expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit 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, except that no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of such person's duty to
the corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery of Delaware or such other
court shall deem proper.
Section 7.3. DETERMINATION OF INDEMNIFICATION. Any indemnification
under Section 7.1 or 7.2 of this Article 7 (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 director, officer, employee or agent
is proper in the
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circumstances because such person has met the applicable standard of conduct set
forth in Section 7.1 or 7.2 of this Article 7. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in, a written
opinion, or (iii) by the stockholders.
Section 7.4. RIGHT TO INDEMNIFICATION. Notwithstanding the other
provisions of this Article 7, to the extent that a director, officer, employee
or agent of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 7.1 or 7.2 of
this Article 7, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 7. 5. ADVANCE OF EXPENSES. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the corporation on
behalf of a director, officer, employee or agent in advance of the final
disposition of such action, suit or proceeding as authorized by the board of
directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
corporation as authorized in this Article 7.
Section 7.6. INDEMNIFICATION NOT EXCLUSIVE. The indemnification
provided by this Article 7 shall not be deemed exclusive of any other rights to
which any person seeking indemnification may be entitled under any law, any
agreement, the certificate of incorporation, any vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 7.7. 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
such person and incurred by such person in any such
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capacity, or arising out of such person's status as such, whether or not the
corporation would have the, power to indemnify such person against liability
under the provisions of this Article 7.
Section 7.8. DEFINITIONS OF CERTAIN TERMS, For purposes of this Article
7, references to "the 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 7 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.
For purposes of this Article 7, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; references
to "serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner such person reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this Article 7.
Section 7.9. CONTINUITY. The indemnification and advancement of
expenses provided for in this Article 7 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent of the corporation and shall inure to the benefit of
the heirs, executors and administrators of such a person.
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ARTICLE 8
CERTIFICATES OF STOCK
Section 8. 1. CERTIFICATES. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by, or in the name of the
corporation by, the chairman or vice chairman of the board of directors, or the
president or a vice president and the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional, or other special rights of
each class of stock or series thereof, and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise stated in Section 202 of the DGCL, as amended, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional and other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 8.2. FACSIMILE SIGNATURES. When any such certificate is
countersigned by a transfer agent or registered by a registrar other than the
corporation or an employee of the corporation, any or all of the signatures on
the certificate may be 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.
Section 8.3. LOST 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
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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 sun as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 8.4. TRANSFERS OF STOCK. 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, assignment 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.
Section 8.5. 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 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 (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. 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 (i) not precede the
date upon which the resolution fixing the record date is adopted by the board
and (ii) not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the board.
Section 8.6. REGISTERED STOCKHOLDERS. , The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
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ARTICLE 9
GENERAL PROVISIONS
Section 9.1. DIVIDENDS. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, 'in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 9.2. RESERVES. 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 may 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 9.3. ANNUAL STATEMENT. 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 9.4. CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
Section 9.5. CONTRACTS. The board may authorize any officer or
officers, agent or agents, in the name and on behalf of the corporation, to
enter into any contract or to execute and deliver any instrument, which
authorization may be general or confined to specific instances; and, unless so
authorized by the board, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable pecuniarily for any purpose or for any amount.
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Section 9.6. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 9.7. SEAL. The corporate seal shall have inscribed thereon the
name of the corporation and the words "Seal" or "Corporate Seal." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 9.8. CONFLICTS WITH CERTIFICATE OF INCORPORATION. In the event
of a conflict between the provisions of these Bylaws and the certificate of
incorporation, the provisions of the certificate of incorporation shall control.
ARTICLE 10
AMENDMENTS
Section 10.1. AMENDMENTS. These Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by a majority of the entire board of
directors, at any meeting of the board of directors if notice of such
alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such meeting.
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