BYLAWS
OF
SBE,
INC.
ARTICLE
I
OFFICES
1. REGISTERED
OFFICE. The registered office of the corporation in the State of Delaware
will
be in the City of Wilmington, County of New Castle.
2. OTHER
OFFICES. The corporation will also have and maintain an office or principal
place of business at such place as may be fixed by the Board of Directors,
and
may also have offices at such other places, both within and 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
CORPORATE
SEAL
3. CORPORATE
SEAL. The corporate seal will consist of a die bearing the name of the
corporation and the inscription, “Corporate Seal-Delaware.” Said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE
III
STOCKHOLDERS’
MEETINGS
4. PLACE
OF
MEETINGS. Meetings of the stockholders of the corporation will be held at
such
place, either within or without the State of Delaware, as may be designated
from
time to time by the Board of Directors, or, if not so designated, then at
the
office of the corporation required to be maintained pursuant to Section 2
hereof.
5. ANNUAL
MEETING.
(a) The
annual meeting of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before
it, will be held on such date and at such time as may be designated from
time to
time by the Board of Directors.
(b) At
an
annual meeting of the stockholders, only such business will be conducted
as will
have been properly brought before the meeting. To be properly brought before
an
annual meeting, business must be: (1) specified in the notice of meeting
(or any
supplement thereto) given by or at the direction of the Board of Directors,
(2)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (3) otherwise properly brought before the meeting
by a
stockholder. For business to be properly brought before an annual meeting
by a
stockholder, the stockholder must have given timely notice thereof in writing
to
the Secretary of the corporation. To be timely, a stockholder’s notice must be
delivered to or mailed and received at the principal executive offices of
the
corporation not later than the close of business on the sixtieth (60th) day
nor
earlier than the close of business on the ninetieth (90th) day prior to the
first anniversary of the preceding year’s annual meeting; PROVIDED, HOWEVER,
that in the event that no annual meeting was held in the previous year or
the
date of the annual meeting has been changed by more than thirty (30) days
from
the date contemplated at the time of the previous year’s proxy statement, notice
by the stockholder to be timely must be so received not earlier than the
close
of business on the ninetieth (90th) day prior to such annual meeting and
not
later than the close of business on the later of the sixtieth (60th) day
prior
to such annual meeting or, in the event public announcement of the date of
such
annual meeting is first made by the corporation fewer than seventy (70) days
prior to the date of such annual meeting, the close of business on the tenth
(10th) day following the day on which public announcement of the date of
such
meeting is first made by the corporation.
A
stockholder’s notice to the Secretary will set forth as to each matter the
stockholder proposes to bring before the annual meeting: (1) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (2) the name and address,
as
they appear on the corporation’s books, of the stockholder proposing such
business, (3) the class and number of shares of the corporation which are
beneficially owned by the stockholder, (4) any material interest of the
stockholder in such business and (5) any other information that is required
to
be provided by the stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the “1934 Act”), in his capacity as a
proponent to a stockholder proposal. Notwithstanding the foregoing, in order
to
include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholder’s meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934
Act.
Notwithstanding anything in these Bylaws to the contrary, no business will
be
conducted at any annual meeting except in accordance with the procedures
set
forth in this paragraph (b). The chairman of the annual meeting will, if
the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions
of
this paragraph (b), and, if he should so determine, he will so declare at
the
meeting that any such business not properly brought before the meeting will
not
be transacted.
(c) Only
persons who are nominated in accordance with the procedures set forth in
this
paragraph (c) will be eligible for election as directors. Nominations of
persons
for election to the Board of Directors of the corporation may be made at
a
meeting of stockholders by or at the direction of the Board of Directors
or by
any stockholder of the corporation entitled to vote in the election of directors
at the meeting who complies with the notice procedures set forth in this
paragraph (c). Such nominations, other than those made by or at the direction
of
the Board of Directors, will be made pursuant to timely notice in writing
to the
Secretary of the corporation in accordance with the provisions of paragraph
(b)
of this Section 5. Such stockholder’s notice will set forth (1) as to each
person, if any, whom the stockholder proposes to nominate for election or
re-election as a director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation which are
beneficially owned by such person, (D) a description of all arrangements
or
understandings between the stockholder and each nominee and any other person
or
persons (naming such person or persons) pursuant to which the nominations
are to
be made by the stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation
14A
under the 1934 Act (including without limitation such person’s written consent
to being named in the proxy statement, if any, as a nominee and to serving
as a
director if elected); and (2) as to such stockholder giving notice, the
information required to be provided pursuant to paragraph (b) of this Section
5.
At the request of the Board of Directors, any person nominated by a stockholder
for election as a director will furnish to the Secretary of the corporation
that
information required to be set forth in the stockholder’s notice of nomination
which pertains to the nominee. No person will be eligible for election as
a
director of the corporation unless nominated in accordance with the procedures
set forth in this paragraph (c). The chairman of the meeting will, if the
facts
warrant, determine and declare at the meeting that a nomination was not made
in
accordance with the procedures prescribed by these Bylaws, and if he should
so
determine, he will so declare at the meeting, and the defective nomination
will
be disregarded.
(d) For
purposes of this Section 5, “public announcement” will mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section
13,
14 or 15(d) of the Exchange Act.
6. SPECIAL
MEETINGS.
(a) Special
meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by (1) the Chairman of the Board of Directors, (2) the Chief
Executive Officer, (3) the Board of Directors pursuant to a resolution adopted
by a majority of the total number of authorized directors (whether or not
there
exist any vacancies in previously authorized directorships at the time any
such
resolution is presented to the Board of Directors for adoption) or (4) by
the
holders of shares entitled to cast not less than a majority of the votes
at the
meeting, and will be held at such place, on such date, and at such time as
the
Board of Directors, will fix.
(b) If
a
special meeting is called by any person or persons other than the Board of
Directors, the request will be in writing, specifying the general nature
of the
business proposed to be transacted, and will be delivered personally or sent
by
registered mail or by telegraphic or other facsimile transmission to the
Chairman of the Board of Directors, the Chief Executive Officer, or the
Secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The Board of Directors will
determine the time and place of such special meeting, which will be held
not
less than thirty-five (35) nor more than one hundred twenty (120) days after
the
date of the receipt of the request. Upon determination of the time and place
of
the meeting, the officer receiving the request will cause notice to be given
to
the stockholders entitled to vote, in accordance with the provisions of Section
7 of these Bylaws. If the notice is not given within sixty (60) days after
the
receipt of the request, the person or persons requesting the meeting may
set the
time and place of the meeting and give the notice. Nothing contained in this
paragraph (b) will be construed as limiting, fixing, or affecting the time
when
a meeting of stockholders called by action of the Board of Directors may
be
held.
7. NOTICE
OF
MEETINGS. Except as otherwise provided by law or the Certificate of
Incorporation, written notice of each meeting of stockholders will 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, such notice to specify
the
place, date and hour and purpose or purposes of the meeting. Notice of the
time,
place and purpose of any meeting of stockholders may be waived in writing,
signed by the person entitled to notice thereof, either before or after such
meeting, and will be waived by any stockholder by his attendance thereat
in
person or by proxy, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Any stockholder so waiving notice of such meeting will be bound
by the
proceedings of any such meeting in all respects as if due notice thereof
had
been given.
8. QUORUM.
At all meetings of stockholders, except where otherwise provided by statute
or
by the Certificate of Incorporation, or by these Bylaws, the presence, in
person
or by proxy duly authorized, of the holders of a majority of the outstanding
shares of stock entitled to vote will constitute a quorum for the transaction
of
business. In the absence of a quorum, any meeting of stockholders may be
adjourned, from time to time, either by the chairman of the meeting or by
vote
of the holders of a majority of the shares represented thereat, but no other
business will be transacted at such meeting. The stockholders present at
a duly
called or convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as otherwise provided by
law,
the Certificate of Incorporation or these Bylaws, all action taken by the
holders of a majority of the vote cast, excluding abstentions, at any meeting
at
which a quorum is present will be valid and binding upon the corporation;
PROVIDED, HOWEVER, that directors will be elected by a plurality of the votes
of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors. Where a separate vote by a class or
classes or series is required, except where otherwise provided by the statute
or
by the Certificate of Incorporation or these Bylaws, a majority of the
outstanding shares of such class or classes or series, present in person
or
represented by proxy, will constitute a quorum entitled to take action with
respect to that vote on that matter and, except where otherwise provided
by the
statute or by the Certificate of Incorporation or these Bylaws, the affirmative
vote of the majority (plurality, in the case of the election of directors)
of
the votes cast, including abstentions, by the holders of shares of such class
or
classes or series will be the act of such class or classes or
series.
9. ADJOURNMENT
AND NOTICE OF ADJOURNED MEETINGS. Any meeting of stockholders, whether annual
or
special, may be adjourned from time to time either by the chairman of the
meeting or by the vote of a majority of the shares casting votes, excluding
abstentions. When a meeting is adjourned to another time or place, notice
need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting will be given to each
stockholder of record entitled to vote at the meeting.
10. VOTING
RIGHTS. For the purpose of determining those stockholders entitled to vote
at
any meeting of the stockholders, except as otherwise provided by law, only
persons in whose names shares stand on the stock records of the corporation
on
the record date, as provided in Section 12 of these Bylaws, will be entitled
to
vote at any meeting of stockholders. Every person entitled to vote will have
the
right to do so either in person or by an agent or agents authorized by a
proxy
granted in accordance with Delaware law. An agent so appointed need not be
a
stockholder. No proxy will be voted after three (3) years from its date of
creation unless the proxy provides for a longer period.
11. JOINT
OWNERS OF STOCK. If shares or other securities having voting power stand
of
record in the names of two (2) or more persons, whether fiduciaries, members
of
a partnership, joint tenants, tenants in common, tenants by the entirety,
or
otherwise, or if two (2) or more persons have the same fiduciary relationship
respecting the same shares, unless the Secretary is given written notice
to the
contrary and is furnished with a copy of the instrument or order appointing
them
or creating the relationship wherein it is so provided, their acts with respect
to voting will have the following effect: (a) if only one (1) votes, his
act
binds all; (b) if more than one (1) votes, the act of the majority so voting
binds all; (c) if more than one (1) votes, but the vote is evenly split on
any
particular matter, each faction may vote the securities in question
proportionally, or may apply to the Delaware Court of Chancery for relief
as
provided in the General Corporation Law of Delaware, Section 217(b). If the
instrument filed with the Secretary shows that any such tenancy is held in
unequal interests, a majority or even-split for the purpose of subsection
(c)
will be a majority or even-split in interest.
12. LIST
OF
STOCKHOLDERS. The Secretary will prepare and make, at least ten (10) days
before
every meeting of stockholders, a complete list of the stockholders entitled
to
vote at said meeting, arranged in alphabetical order, showing the address
of
each stockholder and the number of shares registered in the name of each
stockholder. Such list will 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 will be specified in the
notice of the meeting, or, if not specified, at the place where the meeting
is
to be held. The list will be produced and kept at the time and place of meeting
during the whole time thereof and may be inspected by any stockholder who
is
present.
13. ACTION
WITHOUT MEETING. No action will be taken by the stockholders except at an
annual
or special meeting of stockholders called in accordance with these Bylaws,
and
no action will be taken by the stockholders by written consent.
14. ORGANIZATION.
(a) At
every
meeting of stockholders, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or, if the
President is absent, a chairman of the meeting chosen by a majority in interest
of the stockholders entitled to vote, present in person or by proxy, will
act as
chairman. The Secretary, or, in his absence, an Assistant Secretary directed
to
do so by the President, will act as secretary of the meeting.
(b) The
Board
of Directors of the corporation will be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it will deem
necessary, appropriate or convenient. Subject to such rules and regulations
of
the Board of Directors, if any, the chairman of the meeting will have the
right
and authority to prescribe such rules, regulations and procedures and to
do all
such acts as, in the judgment of such chairman, are necessary, appropriate
or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of
the
corporation and their duly authorized and constituted proxies and such other
persons as the chairman will permit, restrictions on entry to the meeting
after
the time fixed for the commencement thereof, limitations on the time allotted
to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot.
Unless
and to the extent determined by the Board of Directors or the chairman of
the
meeting, meetings of stockholders will not be required to be held in accordance
with rules of parliamentary procedure.
ARTICLE
IV
DIRECTORS
15. NUMBER
AND TERM OF OFFICE. The authorized number of directors of the corporation
will
be fixed in accordance with the Certificate of Incorporation. Directors need
not
be stockholders unless so required by the Certificate of Incorporation. If
for
any cause, the directors will not have been elected at an annual meeting,
they
may be elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these
Bylaws.
16. POWERS.
The powers of the corporation will be exercised, its business conducted and
its
property controlled by the Board of Directors, except as may be otherwise
provided by statute or by the Certificate of Incorporation.
17. CLASSES
OF DIRECTORS. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the directors
will be divided into three classes designated as Class I, Class II and Class
III, respectively. Directors will be assigned to each class in accordance
with a
resolution or resolutions adopted by the Board of Directors. At the first
annual
meeting of stockholders following the adoption and filing of this Certificate
of
Incorporation, the term of office of the Class I directors will expire and
Class
I directors will be elected for a full term of three years. At the second
annual
meeting of stockholders following the adoption and filing of this Certificate
of
Incorporation, the term of office of the Class II directors will expire and
Class II directors will be elected for a full term of three years. At the
third
annual meeting of stockholders following the adoption and filing of this
Certificate of Incorporation, the term of office of the Class III directors
will
expire and Class III directors will be elected for a full term of three years.
At each succeeding annual meeting of stockholders, directors will be elected
for
a full term of three years to succeed the directors of the class whose terms
expire at such annual meeting. Notwithstanding the foregoing provisions of
this
Article, each director will serve until his or her successor is duly elected
and
qualified or until his or her death, resignation or removal. No decrease
in the
number of directors constituting the Board of Directors will shorten the
term of
any incumbent director.
18. VACANCIES.
Unless otherwise provided in the Certificate of Incorporation, any vacancies
on
the Board of Directors resulting from death, resignation, disqualification,
removal or other causes and any newly created directorships resulting from
any
increase in the number of directors, will unless the Board of Directors
determines by resolution that any such vacancies or newly created directorships
will be filled by stockholders, be filled only by the affirmative vote of
a
majority of the directors then in office, even though less than a quorum
of the
Board of Directors. Any director elected in accordance with the preceding
sentence will hold office for the remainder of the full term of the director
for
which the vacancy was created or occurred and until such director’s successor
will have been elected and qualified. A vacancy in the Board of Directors
will
be deemed to exist under this Bylaw in the case of the death, removal or
resignation of any director.
19. RESIGNATION.
Any director may resign at any time by delivering his written resignation
to the
Secretary, such resignation to specify whether it will be effective at a
particular time, upon receipt by the Secretary or at the pleasure of the
Board
of Directors. If no such specification is made, it will be deemed effective
at
the pleasure of the Board of Directors. When one or more directors will resign
from the Board of Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned, will have
power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations will become effective, and each Director so chosen
will hold office for the unexpired portion of the term of the Director whose
place will be vacated and until his successor will have been duly elected
and
qualified.
20. REMOVAL.
Subject to the rights of the holders of any series of Preferred Stock, no
director will be removed without cause. Subject to any limitations imposed
by
law, the Board of Directors or any individual director may be removed from
office at any time with cause by the affirmative vote of the holders of a
majority of the voting power of all the then-outstanding shares of voting
stock
of the corporation, entitled to vote at an election of directors (the “Voting
Stock”).
21. MEETINGS.
(a) ANNUAL
MEETINGS. The annual meeting of the Board of Directors will be held immediately
before or after the annual meeting of stockholders and at the place where
such
meeting is held. No notice of an annual meeting of the Board of Directors
will
be necessary and such meeting will be held for the purpose of electing officers
and transacting such other business as may lawfully come before it.
(b) REGULAR
MEETINGS. Except as hereinafter otherwise provided, regular meetings of the
Board of Directors will be held in the office of the corporation required
to be
maintained pursuant to Section 2 hereof. Unless otherwise restricted by the
Certificate of Incorporation, regular meetings of the Board of Directors
may
also be held at any place within or without the State of Delaware which has
been
designated by resolution of the Board of Directors or the written consent
of all
directors.
(c) SPECIAL
MEETINGS. Unless otherwise restricted by the Certificate of Incorporation,
special meetings of the Board of Directors may be held at any time and place
within or without the State of Delaware whenever called by the Chairman of
the
Board, the President or any two of the directors.
(d) TELEPHONE
MEETINGS. Any member of the Board of Directors, or of any committee thereof,
may
participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means
will
constitute presence in person at such meeting.
(e) NOTICE
OF
MEETINGS. Notice of the time and place of all special meetings of the Board
of
Directors will be orally or in writing, by telephone, including a voice
messaging system or other system or technology designed to record and
communicate messages, facsimile, telegraph or telex, or by electronic mail
or
other electronic means, during normal business hours, at least twenty-four
(24)
hours before the date and time of the meeting, or sent in writing to each
director by first class mail, charges prepaid, at least three (3) days before
the date of the meeting. Notice of any meeting may be waived in writing at
any
time before or after the meeting and will be waived by any director by
attendance thereat, except when the director attends the 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.
(f) WAIVER
OF
NOTICE. The transaction of all business at any meeting of the Board of
Directors, or any committee thereof, however called or noticed, or wherever
held, will be as valid as though had at a meeting duly held after regular
call
and notice, if a quorum be present and if, either before or after the meeting,
each of the directors not present will sign a written waiver of notice. All
such
waivers will be filed with the corporate records or made a part of the minutes
of the meeting.
22. QUORUM
AND VOTING.
(a) Unless
the Certificate of Incorporation requires a greater number and except with
respect to indemnification questions arising under Section 43 hereof, for
which
a quorum will be one-third of the exact number of directors fixed from time
to
time in accordance with the Certificate of Incorporation, a quorum of the
Board
of Directors will consist of a majority of the exact number of directors
fixed
from time to time by the Board of Directors in accordance with the Certificate
of Incorporation; PROVIDED, HOWEVER, at any meeting whether a quorum be present
or otherwise, a majority of the directors present may adjourn from time to
time
until the time fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b) At
each
meeting of the Board of Directors at which a quorum is present, all questions
and business will be determined by the affirmative vote of a majority of
the
directors present, unless a different vote be required by law, the Certificate
of Incorporation or these Bylaws.
23. 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 or of any committee thereof may be taken without a
meeting, if all members of the Board of Directors or committee, as the case
may
be, consent thereto in writing, and such writing or writings are filed with
the
minutes of proceedings of the Board of Directors or committee.
24. FEES
AND
COMPENSATION. Directors will be entitled to such compensation for their services
as may be approved by the Board of Directors, including, if so approved,
by
resolution of the Board of Directors, a fixed sum and expenses of attendance,
if
any, for attendance at each regular or special meeting of the Board of Directors
and at any meeting of a committee of the Board of Directors. Nothing herein
contained will be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee, or otherwise
and receiving compensation therefor.
25. COMMITTEES.
(a) EXECUTIVE
COMMITTEE. The Board of Directors may by resolution passed by a majority
of the
whole Board of Directors appoint an Executive Committee to consist of one
(1) or
more members of the Board of Directors. The Executive Committee, to the extent
permitted by law and provided in the resolution of the Board of Directors
will
have and may exercise all the powers and authority of the Board of Directors
in
the management of the business and affairs of the corporation, including
without
limitation the power or authority to declare a dividend, to authorize the
issuance of stock and to adopt a certificate of ownership and merger, and
may
authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee will have the power or authority in reference
to amending the Certificate of Incorporation (except that a committee may,
to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors 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 fix the number of shares of any
series
of stock or authorize the increase or decrease of the shares of any series),
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation’s property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the
bylaws of the corporation.
(b) OTHER
COMMITTEES. The Board of Directors may, by resolution passed by a majority
of
the whole Board of Directors, from time to time appoint such other committees
as
may be permitted by law. Such other committees appointed by the Board of
Directors will consist of one (1) or more members of the Board of Directors
and
will have such powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committees, but in no event will
such
committee have the powers denied to the Executive Committee in these
Bylaws.
(c) TERM.
Each member of a committee of the Board of Directors will serve a term on
the
committee coexistent with such member’s term on the Board of Directors. The
Board of Directors, subject to the provisions of subsections (a) or (b) of
this
Bylaw may at any time increase or decrease the number of members of a committee
or terminate the existence of a committee. The membership of a committee
member
will terminate on the date of his death or voluntary resignation from the
committee or from the Board of Directors. The Board of Directors may at any
time
for any reason remove any individual committee member and the Board of Directors
may fill any committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. The Board of Directors
may
designate one or more directors as alternate members of any committee, who
may
replace any absent or disqualified member at any meeting of the committee,
and,
in addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified
from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of
any such absent or disqualified member.
(d) MEETINGS.
Unless the Board of Directors will otherwise provide, regular meetings of
the
Executive Committee or any other committee appointed pursuant to this Section
25
will be held at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has been given
to
each member of such committee, no further notice of such regular meetings
need
be given thereafter. Special meetings of any such committee may be held at
any
place which has been determined from time to time by such committee, and
may be
called by any director who is a member of such committee, upon written notice
to
the members of such committee of the time and place of such special meeting
given in the manner provided for the giving of written notice to members
of the
Board of Directors of the time and place of special meetings of the Board
of
Directors. Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be waived by any
director by attendance thereat, except when the director attends such special
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. A majority of the authorized number of members of any such committee
will constitute a quorum for the transaction of business, and the act of
a
majority of those present at any meeting at which a quorum is present will
be
the act of such committee.
26. ORGANIZATION.
At every meeting of the directors, the Chairman of the Board of Directors,
or,
if a Chairman has not been appointed or is absent, the President, or if the
President is absent, the most senior Vice President, or, in the absence of
any
such officer, a chairman of the meeting chosen by a majority of the directors
present, will preside over the meeting. The Secretary, or in his absence,
an
assistant secretary directed to do so by the President, will act as secretary
of
the meeting.
ARTICLE
V
OFFICERS
27. OFFICERS
DESIGNATED. The officers of the corporation will include, if and when designated
by the Board of Directors, the Chairman of the Board of Directors, the
President, one or more Vice Presidents, the Secretary, the Chief Financial
Officer, all of whom will be elected at the annual organizational meeting
of the
Board of Directors. The Board of Directors may also appoint other officers
and
agents with such powers and duties as it will deem necessary. The Board of
Directors may assign such additional titles to one or more of the officers
as it
will deem appropriate. The Board of Directors may empower the chief executive
officer of the corporation to appoint such officers, other than the Chairman
of
the Board, President, Secretary or Chief Financial Officer, as the business
of
the corporation may require. Any one person may hold any number of offices
of
the corporation at any one time unless specifically prohibited therefrom
by law.
The salaries and other compensation of the officers of the corporation will
be
fixed by or in the manner designated by the Board of Directors.
28. TENURE
AND DUTIES OF OFFICERS.
(a) GENERAL.
All officers will hold office at the pleasure of the Board of Directors and
until their successors will have been duly elected and qualified, unless
sooner
removed. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors. If the office of any officer
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors.
(b) DUTIES
OF
CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of Directors,
when
present, will preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors will perform other duties
commonly incident to his office and will also perform such other duties and
have
such other powers as the Board of Directors will designate from time to time.
If
there is no President, then the Chairman of the Board of Directors will also
serve as the general manager and chief executive officer of the corporation
and
will have the powers and duties prescribed in paragraph (c) of this Section
28.
(c) DUTIES
OF
PRESIDENT. The President will preside at all meetings of the stockholders
and at
all meetings of the Board of Directors, unless the Chairman of the Board
of
Directors has been appointed and is present. The President will be general
manager and chief executive officer of the corporation and will, subject
to the
control of the Board of Directors, have general supervision, direction and
control of the business and officers of the corporation. The President will
have
discretion to prescribe the duties of other officers and employees of the
corporation in a manner not inconsistent with the provisions of these bylaws
and
the directions of the Board of Directors. The President will perform other
duties commonly incident to his office and will also perform such other duties
and have such other powers as the Board of Directors will designate from
time to
time.
(d) DUTIES
OF
VICE PRESIDENTS. The Vice Presidents, in order of their rank as fixed by
the
Board of Directors, or if not ranked, the Vice President designated by the
Board
of Directors, may assume and perform the duties of the President in the absence
or disability of the President or whenever the office of President is vacant.
The Vice Presidents will perform other duties commonly incident to their
office
and will also perform such other duties and have such other powers as the
Board
of Directors or the President will designate from time to time.
(e) DUTIES
OF
SECRETARY. The Secretary will attend all meetings of the stockholders and
of the
Board of Directors and will record all acts and proceedings thereof in the
minute book of the corporation. The Secretary will give notice in conformity
with these Bylaws of all meetings of the stockholders and of all meetings
of the
Board of Directors and any committee thereof requiring notice. The Secretary
will perform all other duties given him in these Bylaws and other duties
commonly incident to his office and will also perform such other duties and
have
such other powers as the Board of Directors will designate from time to time.
If
any assistant secretaries are appointed, the President may direct the assistant
secretary or one of the assistant secretaries in the order of their rank
as
fixed by the Board of Directors or, if they are not so ranked, the assistant
secretary designated by the Board of Directors, to assume and perform the
duties
of the Secretary in the absence or disability of the Secretary, and each
Assistant Secretary will perform other duties commonly incident to his office
and will also perform such other duties and have such other powers as the
Board
of Directors or the President will designate from time to time.
(f) DUTIES
OF
CHIEF FINANCIAL OFFICER. The Chief Financial Officer will be responsible
for all
functions and duties of the treasurer of the corporation. The Chief Financial
Officer will keep or cause to be kept the books of account of the corporation
in
a thorough and proper manner and will render statements of the financial
affairs
of the corporation in such form and as often as required by the Board of
Directors or the President. The Chief Financial Officer, subject to the order
of
the Board of Directors, will have the custody of all funds and securities
of the
corporation. The Chief Financial Officer will perform other duties commonly
incident to his office and will also perform such other duties and have such
other powers as the Board of Directors or the President will designate from
time
to time. If any assistant financial officers are appointed, the President
may
direct the assistant financial officer, or one of the assistant financial
officers, if there are more than one, in the order of their rank as fixed
by the
Board of Directors or if they are not so ranked, the assistant financial
officer
designated by the Board of Directors, to assume and perform the duties of
the
Chief Financial Officer in the absence or disability of the Chief Financial
Officer, and each assistant financial officer will perform other duties commonly
incident to his office and will also perform such other duties and have such
other powers as the Board of Directors or the President will designate from
time
to time.
29. DELEGATION
OF AUTHORITY. The Board of Directors may from time to time delegate the powers
or duties of any officer to any other officer or agent, notwithstanding any
provision hereof.
30. RESIGNATIONS.
Any officer may resign at any time by giving written notice to the Board
of
Directors or to the President or to the Secretary. Any such resignation will
be
effective when received by the person or persons to whom such notice is given,
unless a later time is specified therein, in which event the resignation
will
become effective at such later time. Unless otherwise specified in such notice,
the acceptance of any such resignation will not be necessary to make it
effective. Any resignation will be without prejudice to the rights, if any,
of
the corporation under any contract with the resigning officer.
31. REMOVAL.
Any officer may be removed from office at any time with cause by the affirmative
vote of a majority of the directors in office at the time, or by the unanimous
written consent of the directors in office at the time, or by any committee
or
superior officers upon whom such power of removal may have been conferred
by the
Board of Directors.
ARTICLE
VI
EXECUTION
OF CORPORATE INSTRUMENTS
AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
32. EXECUTION
OF CORPORATE INSTRUMENTS. The Board of Directors may, in its discretion,
determine the method and designate the signatory officer or officers, or
other
person or persons, to execute on behalf of the corporation any corporate
instrument or document, or to sign on behalf of the corporation the corporate
name without limitation, or to enter into contracts on behalf of the
corporation, except where otherwise provided by law or these Bylaws, and
such
execution or signature will be binding upon the corporation.
Unless
otherwise specifically determined by the Board of Directors or otherwise
required by law, promissory notes, deeds of trust, mortgages and other evidences
of indebtedness of the corporation, and other corporate instruments or documents
requiring the corporate seal, and certificates of shares of stock owned by
the
corporation, will be executed, signed or endorsed by the Chairman of the
Board
of Directors, or the President or any Vice President, and by the Secretary
or
Chief Financial Officer. All other instruments and documents requiring the
corporate signature, but not requiring the corporate seal, may be executed
as
aforesaid or in such other manner as may be directed by the Board of
Directors.
All
checks and drafts drawn on banks or other depositaries on funds to the credit
of
the corporation or in special accounts of the corporation will be signed
by such
person or persons as the Board of Directors will authorize so to
do.
Unless
authorized or ratified by the Board of Directors or within the agency power
of
an officer, no officer, agent or employee will have any power or authority
to
bind the corporation by any contract or engagement or to pledge its credit
or to
render it liable for any purpose or for any amount.
33. VOTING
OF
SECURITIES OWNED BY THE CORPORATION. All stock and other securities of other
corporations owned or held by the corporation for itself, or for other parties
in any capacity, will be voted, and all proxies with respect thereto will
be
executed, by the person authorized so to do by resolution of the Board of
Directors, or, in the absence of such authorization, by the Chairman of the
Board of Directors, the President, or any Vice President.
ARTICLE
VII
SHARES
OF
STOCK
34. FORM
AND
EXECUTION OF CERTIFICATES. The shares of the corporation shall be represented
by
certificates unless the Board of Directors shall, by resolution, provide
that
some or all of any class or series of stock shall be uncertificated shares.
Any
such resolution shall not apply to shares represented by certificate until
the
certificate is surrendered to the corporation. Certificates for the shares
of
stock of the corporation will be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of stock in
the
corporation will be entitled to have a certificate signed by or in the name
of
the corporation by the Chairman of the Board of Directors, or the President
or
any Vice President and by the Chief Financial Officer or assistant financial
officer or the Secretary or assistant secretary, certifying the number of
shares
owned by him in the corporation. Any or all of the signatures on the certificate
may be facsimiles. In case any officer, transfer agent, or registrar who
has
signed or whose facsimile signature has been placed upon a certificate will
have
ceased to be such officer, transfer agent, or registrar before such certificate
is issued, it may be issued with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. Each certificate will
state
upon the face or back thereof, in full or in summary, all of the powers,
designations, preferences, and rights, and the limitations or restrictions
of
the shares authorized to be issued or will, except as otherwise required
by law,
set forth on the face or back a statement that the corporation will furnish
without charge to each stockholder who so requests 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. Within a reasonable time
after
the issuance or transfer of uncertificated stock, the corporation will send
to
the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to this section
or
otherwise required by law or with respect to this section a statement that
the
corporation will furnish without charge to each stockholder who so requests
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. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of certificates representing stock of the same class and series will be
identical.
35. LOST
CERTIFICATES. A new certificate or certificates will 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. The corporation may require, as a condition precedent to the issuance
of a new certificate or certificates, the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it will require or to give the corporation a surety
bond in such form and amount 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.
36. TRANSFERS.
(a) Transfers
of record of shares of stock of the corporation will be made only upon its
books
by the holders thereof, in person or by attorney duly authorized, upon
compliance with the customary procedures for transferring shares in
uncertificated form or upon surrender of a properly endorsed certificate
or
certificates for a like number of shares
(b) The
corporation will have power to enter into and perform any agreement with
any
number of stockholders of any one or more classes of stock of the corporation
to
restrict the transfer of shares of stock of the corporation of any one or
more
classes owned by such stockholders in any manner not prohibited by the General
Corporation Law of Delaware.
37. FIXING
RECORD DATES. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record
date,
which record date will not precede the date upon which the resolution fixing
the
record date is adopted by the Board of Directors, and which record date will
not
be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record
date
for determining stockholders entitled to notice of or to vote at a meeting
of
stockholders will be at the close of business on the day next preceding the
day
on which notice is given, or if notice is waived, at the close of business
on
the day next preceding the day on which the meeting is held. A determination
of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders will apply to any adjournment of the meeting; PROVIDED, HOWEVER,
that the Board of Directors may fix a new record date for the adjourned
meeting.
38. REGISTERED
STOCKHOLDERS. The corporation will 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 will 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 will have express or other notice thereof, except
as
otherwise provided by the laws of Delaware.
ARTICLE
VIII
OTHER
SECURITIES OF THE CORPORATION
39. EXECUTION
OF OTHER SECURITIES. All bonds, debentures and other corporate securities
of the
corporation, other than stock certificates (covered in Section 34), may be
signed by the Chairman of the Board of Directors, the President or any Vice
President, or such other person as may be authorized by the Board of Directors,
and the corporate seal impressed thereon or a facsimile of such seal imprinted
thereon and attested by the signature of the Secretary or an assistant
secretary, or the Chief Financial Officer or assistant financial officer;
PROVIDED, HOWEVER, that where any such bond, debenture or other corporate
security will be authenticated by the manual signature, or where permissible
facsimile signature, of a trustee under an indenture pursuant to which such
bond, debenture or other corporate security will be issued, the signatures
of
the persons signing and attesting the corporate seal on such bond, debenture
or
other corporate security may be the imprinted facsimile of the signatures
of
such persons. Interest coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid, will be signed
by
the Chief Financial Officer or assistant financial officer of the corporation
or
such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer
who will have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature will appear thereon or on any such
interest coupon, will have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested will have been delivered,
such
bond, debenture or other corporate security nevertheless may be adopted by
the
corporation and issued and delivered as though the person who signed the
same or
whose facsimile signature will have been used thereon had not ceased to be
such
officer of the corporation.
ARTICLE
IX
DIVIDENDS
40. DECLARATION
OF 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 pursuant to law at any regular or special meeting.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
41. DIVIDEND
RESERVE. 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 Board
of
Directors from time to time, in their absolute discretion, think proper as
a
reserve or reserves to meet contingencies, or for equalizing dividends, or
for
repairing or maintaining any property of the corporation, or for such other
purpose as the Board of Directors will think conducive to the interests of
the
corporation, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
ARTICLE
X
FISCAL
YEAR
42. FISCAL
YEAR. The fiscal year of the corporation will be fixed by resolution of the
Board of Directors.
ARTICLE
XI
INDEMNIFICATION
43. INDEMNIFICATION
OF DIRECTORS, EXECUTIVE OFFICERS, OTHER OFFICERS, EMPLOYEES AND OTHER
AGENTS.
(a) DIRECTORS
AND EXECUTIVE OFFICERS. The corporation will indemnify its directors and
executive officers (for the purposes of this Article XI, “executive officers
will have the meaning defined in Rule 3b-7 promulgated under the 1934 Act)
to
the fullest extent not prohibited by the Delaware General Corporation Law;
PROVIDED, HOWEVER, that the corporation may modify the extent of such
indemnification by individual contracts with its directors and executive
officers; and, PROVIDED, FURTHER, that the corporation will not be required
to
indemnify any director or executive officer in connection with any proceeding
(or part thereof) initiated by such person unless (i) such indemnification
is
expressly required to be made by law, (ii) the proceeding was authorized
by the
Board of Directors of the corporation, (iii) such indemnification is provided
by
the corporation, in its sole discretion, pursuant to the powers vested in
the
corporation under the Delaware General Corporation Law or (iv) such
indemnification is required to be made under subsection (d).
(b) OTHER
OFFICERS, EMPLOYEES AND OTHER AGENTS. The corporation will have power to
indemnify its other officers, employees and other agents as set forth in
the
Delaware General Corporation Law.
(c) EXPENSES.
The corporation will advance to any person 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,
by
reason of the fact that he is or was a director or executive officer, of
the
corporation, or is or was serving at the request of the corporation as a
director or executive officer of another corporation, partnership, joint
venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by
any
director or executive officer in connection with such proceeding upon receipt
of
an undertaking by or on behalf of such person to repay said amounts if it
should
be determined ultimately that such person is not entitled to be indemnified
under this Bylaw or otherwise.
Notwithstanding
the foregoing, unless otherwise determined pursuant to paragraph (e) of this
Bylaw, no advance will be made by the corporation to an executive officer
of the
corporation (except by reason of the fact that such executive officer is
or was
a director of the corporation in which event this paragraph will not apply)
in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, if a determination is reasonably and promptly made (1) by
the
Board of Directors by a majority vote of a quorum consisting of directors
who
were not parties to the proceeding, or (2) if such quorum is not obtainable,
or,
even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate
clearly
and convincingly that such person acted in bad faith or in a manner that
such
person did not believe to be in or not opposed to the best interests of the
corporation.
(d) ENFORCEMENT.
Without the necessity of entering into an express contract, all rights to
indemnification and advances to directors and executive officers under this
Bylaw will be deemed to be contractual rights and be effective to the same
extent and as if provided for in a contract between the corporation and the
director or executive officer. Any right to indemnification or advances granted
by this Bylaw to a director or executive officer will be enforceable by or
on
behalf of the person holding such right in any court of competent jurisdiction
if (1) the claim for indemnification or advances is denied, in whole or in
part,
or (2) no disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in whole
or in
part, will be entitled to be paid also the expense of prosecuting his claim.
In
connection with any claim for indemnification, the corporation will be entitled
to raise as a defense to any such action that the claimant has not met the
standards of conduct that make it permissible under the Delaware General
Corporation Law for the corporation to indemnify the claimant for the amount
claimed. In connection with any claim by an executive officer of the corporation
(except in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such executive
officer is or was a director of the corporation) for advances, the corporation
will be entitled to raise a defense as to any such action clear and convincing
evidence that such person acted in bad faith or in a manner that such person
did
not believe to be in or not opposed to the best interests of the corporation,
or
with respect to any criminal action or proceeding that such person acted
without
reasonable cause to believe that his conduct was lawful. Neither the failure
of
the corporation (including its Board of Directors, independent legal counsel
or
its stockholders) to have made a determination prior to the commencement
of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct,
will be a defense to the action or create a presumption that claimant has
not
met the applicable standard of conduct. In any suit brought by a director
or
executive officer to enforce a right to indemnification or to an advancement
of
expenses hereunder, the burden of proving that the director or executive
officer
is not entitled to be indemnified, or to such advancement of expenses, under
this Article XI or otherwise will be on the corporation.
(e) NON-EXCLUSIVITY
OF RIGHTS. The rights conferred on any person by this Bylaw will not be
exclusive of any other right which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise,
both as
to action in his official capacity and as to action in another capacity while
holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees
or
agents respecting indemnification and advances, to the fullest extent not
prohibited by the Delaware General Corporation Law.
(f) SURVIVAL
OF RIGHTS. The rights conferred on any person by this Bylaw will continue
as to
a person who has ceased to be a director, officer, employee or other agent
and
will inure to the benefit of the heirs, executors and administrators of such
a
person.
(g) INSURANCE.
To the fullest extent permitted by the Delaware General Corporation Law,
the
corporation, upon approval by the Board of Directors, may purchase insurance
on
behalf of any person required or permitted to be indemnified pursuant to
this
Bylaw.
(h) AMENDMENTS.
Any repeal or modification of this Bylaw will only be prospective and will
not
affect the rights under this Bylaw in effect at the time of the alleged
occurrence of any action or omission to act that is the cause of any proceeding
against any agent of the corporation.
(i) SAVING
CLAUSE. If this Bylaw or any portion hereof will be invalidated on any ground
by
any court of competent jurisdiction, then the corporation will nevertheless
indemnify each director and executive officer to the full extent not prohibited
by any applicable portion of this Bylaw that will not have been invalidated,
or
by any other applicable law.
(j) CERTAIN
DEFINITIONS. For the purposes of this Bylaw, the following definitions will
apply:
(1) The
term
“proceeding” will be broadly construed and will include, without limitation, the
investigation, preparation, prosecution, defense, settlement, arbitration
and
appeal of, and the giving of testimony in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative.
(2) The
term
“expenses” will be broadly construed and will include, without limitation, court
costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or
judgment and any other costs and expenses of any nature or kind incurred
in
connection with any proceeding.
(3) The
term
the “corporation” will 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, and 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,
will
stand in the same position under the provisions of this Bylaw with respect
to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(4) References
to a “director,” “executive officer,” “officer,” “employee,” or “agent” of the
corporation will include, without limitation, situations where such person
is
serving at the request of the corporation as, respectively, a director,
executive officer, officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(5) References
to “other enterprises” will include employee benefit plans; references to
“fines” will include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the
corporation” will 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 he reasonably believed to be in the interest of the participants
and
beneficiaries of an employee benefit plan will be deemed to have acted in
a
manner “not opposed to the best interests of the corporation” as referred to in
this Bylaw.
ARTICLE
XII
NOTICES
44. NOTICES.
(a) NOTICE
TO
STOCKHOLDERS. Whenever, under any provisions of these Bylaws, notice is required
to be given to any stockholder, it will be given in writing, timely and duly
deposited in the United States mail, postage prepaid, and addressed to his
last
known post office address as shown by the stock record of the corporation
or its
transfer agent.
(b) NOTICE
TO
DIRECTORS. Any notice required to be given to any director may be given by
the
method stated in subsection (a), or by facsimile, telex or telegram, except
that
such notice other than one which is delivered personally will be sent to
such
address as such director will have filed in writing with the Secretary, or,
in
the absence of such filing, to the last known post office address of such
director.
(c) AFFIDAVIT
OF MAILING. An affidavit of mailing, executed by a duly authorized and competent
employee of the corporation or its transfer agent appointed with respect
to the
class of stock affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, or director or directors, to
whom
any such notice or notices was or were given, and the time and method of
giving
the same, will in the absence of fraud, be prima facie evidence of the facts
therein contained.
(d) TIME
NOTICES DEEMED GIVEN. All notices given by mail, as above provided, will
be
deemed to have been given as at the time of mailing, and all notices given
by
facsimile, telex or telegram will be deemed to have been given as of the
sending
time recorded at time of transmission.
(e) METHODS
OF NOTICE. It will not be necessary that the same method of giving notice
be
employed in respect of all directors, but one permissible method may be employed
in respect of any one or more, and any other permissible method or methods
may
be employed in respect of any other or others.
(f) FAILURE
TO RECEIVE NOTICE. The period or limitation of time within which any stockholder
may exercise any option or right, or enjoy any privilege or benefit, or be
required to act, or within which any director may exercise any power or right,
or enjoy any privilege, pursuant to any notice sent him in the manner above
provided, will not be affected or extended in any manner by the failure of
such
stockholder or such director to receive such notice.
(g) NOTICE
TO
PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever notice is required to
be
given, under any provision of law or of the Certificate of Incorporation
or
Bylaws of the corporation, to any person with whom communication is unlawful,
the giving of such notice to such person will not be required and there will
be
no duty to apply to any governmental authority or agency for a license or
permit
to give such notice to such person. Any action or meeting which will be taken
or
held without notice to any such person with whom communication is unlawful
will
have the same force and effect as if such notice had been duly given. In
the
event that the action taken by the corporation is such as to require the
filing
of a certificate under any provision of the Delaware General Corporation
Law,
the certificate will state, if such is the fact and if notice is required,
that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
(h) NOTICE
TO
PERSON WITH UNDELIVERABLE ADDRESS. Whenever notice is required to be given,
under any provision of law or the Certificate of Incorporation or Bylaws
of the
corporation, to any stockholder to whom (i) notice of two consecutive annual
meetings, and all notices of meetings or of the taking of action by written
consent without a meeting to such person during the period between such two
consecutive annual meetings, or (ii) all, and at least two, payments (if
sent by
first class mail) of dividends or interest on securities during a twelve-month
period, have been mailed addressed to such person at his address as shown
on the
records of the corporation and have been returned undeliverable, the giving
of
such notice to such person will not be required. Any action or meeting which
will be taken or held without notice to such person will have the same force
and
effect as if such notice had been duly given. If any such person will deliver
to
the corporation a written notice setting forth his then current address,
the
requirement that notice be given to such person will be reinstated. In the
event
that the action taken by the corporation is such as to require the filing
of a
certificate under any provision of the Delaware General Corporation Law,
the
certificate need not state that notice was not given to persons to whom notice
was not required to be given pursuant to this paragraph.
ARTICLE
XIII
AMENDMENTS
45. AMENDMENTS.
Subject
to paragraph (h) of Section 43 of the Bylaws, the Bylaws may be altered or
amended or new Bylaws adopted by the affirmative vote of at least sixty-six
and
two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock. The Board of Directors will also have the power
to
adopt, amend, or repeal Bylaws.
ARTICLE
XIV
LOANS
TO
OFFICERS
46. LOANS
TO
OFFICERS. The corporation may lend money to, or guarantee any obligation
of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a Director of the
corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected
to
benefit the corporation. The loan, guarantee or other assistance may be with
or
without interest and may be unsecured, or secured in such manner as the Board
of
Directors will approve, including, without limitation, a pledge of shares
of
stock of the corporation. Nothing in these Bylaws will be deemed to deny,
limit
or restrict the powers of guaranty or warranty of the corporation at common
law
or under any statute.