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8-K - IEC ELECTRONICS CORP | v198526_8k.htm |
EX-99.1 - IEC ELECTRONICS CORP | v198526_ex99-1.htm |
Exhibit
3.1
BY
– LAWS
OF
IEC
ELECTRONICS CORP.
(hereinafter
called the “Corporation”)
ARTICLE
I
OFFICES
Section
1. Registered
Office. The registered office of the Corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section
2. Other Offices.
The Corporation 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.
ARTICLE
II
MEETINGS OF
STOCKHOLDERS
Section
1. Time and Place of
Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either
within or without the State of Delaware, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or in a
duly executed waiver of notice thereof, and any such meeting called by the Board
of Directors may be postponed by the Board of Directors to another time and
place prior to the holding of such meeting.
Section
2. Annual
Meetings. The Annual Meetings of Stockholders shall be held
on such dates and at such times as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which meetings
the stockholders shall elect by a plurality vote a Board of Directors, and
transact such other business as may properly be brought before the
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 nor more than sixty days before the date of the
meeting.
Section
3. Special
Meetings. Unless otherwise prescribed by law or by the Certificate
of Incorporation, Special Meetings of Stockholders, for any purpose or purposes,
may be called by either (i) the Chairman, if there be one, or (ii) the
President (iii) any Vice President, if there be one, (iv) the
Secretary, or (v) any Assistant Secretary, if there be one. Such request
shall state the purpose or purposes of the proposed meeting. 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 nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section
4. Quorum. Except
as otherwise provided by law or by the Certificate of Incorporation, 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 constitute a quorum at
all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the 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 noticed. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the
meeting.
Section
5. Voting. Unless
otherwise required by law, the Certificate of Incorporation or these By-Laws,
any question brought before any meeting of stockholders shall be decided by the
vote of the holders of a majority of the stock represented and entitled to vote
thereat. Each stockholder represented at a meeting of stockholders shall
be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or
by proxy but no proxy shall be voted on or after three years from its date,
unless such pr6xy provides for a longer period. The Board of Directors, in
its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting
shall be cast by written ballot.
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Section
6. Authorization of Merger,
Consolidation or Sale of Assets. A vote of 66 2/3 percent of the
outstanding stock entitled to vote thereon shall be required to authorize any
agreement for merger, consolidation or sale of all or substantially all of the
assets of the Corporation. Such vote shall be taken at a meeting called
and held upon notice in accordance with the General Corporation Law and these
By-Laws.
Section
7. List of Stockholders
Entitled to Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of share registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. This 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 of the Corporation who is present.
Section
8. Stock Ledger.
The stock ledger of the Corporation shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list required by
Section 7 of this Article II or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
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Section
9. Notification of
Nominations. Nominations for the election of directors may be made
by the Board of Directors or by any stockholder entitled to vote for the
election of directors. Any stockholder entitled to vote for the election
of directors at a meeting may nominate persons for election as directors only if
written notice of such stockholder's intent to make such nomination is given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation not later than (i) with respect to an election to
be held at an annual meeting of stockholders, 90 days in advance of such
meeting, and (ii) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on the seventh
day following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to make the nomination and of the
person or persons to be nominated (b) a representation that such
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice, (c) a description of all
arrangements or understandings between such stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such stockholder, (d) such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated,
or intended to be nominated by the Board of Directors, and (e) the consent of
each nominee to serve as a director of the Corporation if elected. The
chairman of a stockholder meeting may refuse to acknowledge the nomination of
any person not made in compliance with the foregoing procedure.
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Section
10. Notification of Proposals
for Corporate Action. Any stockholder entitled to vote at a meeting
may make a proposal for corporate action at such meeting only if written notice
of such stockholder's intent to make such a proposal is given, either by
personal delivery or by United States mail, postage prepaid, to the Secretary of
the Corporation not later than (i) with respect to an annual meeting of
stockholders, 90 days in advance of such meeting, and (ii) with respect to a
special meeting of stockholders, the close of business on the seventh day
following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to make the proposal, (b) a
representation that such stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to make the proposal, (c) a description of the proposal,
(d) such other information regarding the proposal as would have been required to
be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange commission. The chairman of a
stockholder meeting may refuse to acknowledge the proposal of any person not
made in compliance with the foregoing procedure.
Section
11. Conduct of
Meeting. The Board of Directors of the Corporation shall be
entitled to make such rules or regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient.
Subject to such rules and regulations of the Board of Directors, if any, the
chairman of the meeting shall 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 shall permit,
restrictions on entry to the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comment 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 shall not be required to be held in accordance with
rules of parliamentary procedure.
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ARTICLE
III
DIRECTORS
Section
1. Number and Election of
Directors. The Board of Directors shall consist of not less than
one nor more than fifteen members, the exact number of which shall initially be
fixed by the Incorporator and thereafter from time to time by the Board of
Directors. Except as provided in Section 2 of this Article III, directors
shall be elected by a plurality of the votes cast at Annual Meetings of
Stockholders, and each director so elected shall hold office until the next
Annual Meeting and until his successor is duly elected and qualified, or until
his earlier resignation or removal. Any director may resign at any time
upon notice to the Corporation. Directors need not be
stockholders.
Section
2. Vacancies.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and qualified, or until their earlier
resignation or removal.
Section
3. Duties and
Powers. The business 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 statute
or by the Certificate of Incorporation or by these By-Laws directed or required
to be exercised or done by the stockholders.
Section
4. Meetings. The
Board of Directors of the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware. Regular meetings
of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman, if
there be one, the President, or any director. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting, by
telephone or telegram on twenty-four (24) hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
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Section
5. Quorum. Except
as may be otherwise specifically provided by law, the Certificate of
Incorporation or these By-Laws, at all meetings of the Board of Directors, 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. 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
6. Actions of
Board. Unless otherwise provided by the Certificate of
Incorporation or these By-Laws, 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 the members of the Board of Directors or committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or
committee.
Section
7. Meetings by Means of
Conference Telephone. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute presence in person at such
meeting.
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Section
8. Committees. The
Board of Directors may, by resolution passed by a majority of the entire Board
of Directors, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. 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 any such
committee. In the absence or disqualification of a member of a committee,
and in the absence of a designation by the Board of Directors of an alternate
member to replace the absent or disqualified member, 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 absent or
disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall 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. Each committee shall
keep regular minutes and report to the Board of Directors when
required.
Section
9. Compensation.
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
such 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.
Section
10 Interested
Directors. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose
if (i) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of the majority
of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specially approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorized the contract or transaction.
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Section
11. Removal of
Directors. Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
ARTICLE
IV
OFFICERS
Section
1. General. The
officers of the Corporation shall be chosen by the Board of Directors and shall
be a President, a Secretary and a Treasurer. The Board of Directors, in
its discretion1 may also
choose a Chairman of the Board of Directors (who must be a director), a Chief
Executive Officer, a Chief Financial Officer, a Chief Operating Officer, a
Controller, and one or more Vice-Presidents, Assistant Vice-Presidents,
Assistant Secretaries, Assistant Treasurers and other officers. Any number
of offices may be held by the same person, unless otherwise prohibited by law,
the Certificate of Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation nor, except in the case
of the Chairman of the Board of Directors, need such officers be directors of
the Corporation.
Section
2. Election, Removal, Vacancies
and Salary. The Board of Directors at its first meeting held after
each Annual Meeting of Stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of Directors.
Any vacancy occurring in any office of the Corporation shall be filled by the
Board of Directors, and, in its discretion, the Board of Directors may leave
unfilled for any period it may fix any office and may delegate the powers or
duties of any officer to another officer or director for an interim period of
time. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
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Section
3. Voting Securities Owned by
the Corporation. Powers of attorney, proxies, waivers of notice of
meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by
the Chairman of the Board, the Chief Executive Officer, the President or any
Vice-President and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section
4. Chairman of the Board of
Directors. The Chairman of the Board of Directors, if there be one,
shall preside at all meetings of the stockholders and of the Board of
Directors. The Chairman of the Board of Directors shall also perform such
other duties and may exercise such other powers as from time to time may be
assigned to the Chairman by these By-Laws or by the Board of
Directors.
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Section
5. Chief Executive
Officer. The Chief Executive Officer, if there be one, shall,
subject to the direction of the Board of Directors, have general and active
control of the affairs and business of the Corporation and general supervision
of its officers, employees and agents, and shall exercise such powers and
perform such duties as customarily pertain to the office of Chief Executive
Officer. Unless the Board of Directors otherwise provide, in the absence
or disability of the Chairman of the Board of Directors, or if there be none,
the Chief Executive Officer shall preside at all meetings of the stockholders
and if he or she is also a director, meetings of the Board of Directors.
The Chief Executive Officer may appoint officers, agents, or employees other
than those elected or appointed by the Board of Directors. The Chief
Executive Officer may sign, execute and deliver in the name of the Corporation
powers of attorney, contracts, bonds, mortgages and other obligations and
instruments of the Corporation and shall perform such other duties and exercise
such other powers as may be prescribed from time to time by the Board of
Directors or the By-Laws.
Section
6. President. The
President shall have the powers and perform the duties which usually pertain to
the office, and shall perform all other duties as directed by the
Board of Directors or the Chief Executive Officer. In the absence of the
Chairman and the Chief Executive Officer, the President shall perform the duties
and exercise the powers of the Chief Executive Officer and, if a director, the
Chairman of the Board. The President may sign, execute and deliver in the name
of the Corporation powers of attorney, all bonds, mortgages, contracts and other
obligations and instruments of the Corporation requiring a seal, under the seal
of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may
sign and execute documents when so authorized by these By-Laws, the Board of
Directors, the Chief Executive Officer or the President.
If there
be no President, the Board of Directors shall designate the officer of the
Corporation, if any, who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all powers of and be subject to all
the restrictions upon the President.
Section
7. Vice-Presidents.
Each Vice-President shall perform such duties and have such powers as the Board
of Directors, Chief Executive Officer or President from time to time may
prescribe. Each Vice-President may sign, execute and deliver contracts and
other obligations pertaining to the regular course of his or her
duties.
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Section
8. Secretary. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also perform like duties for the
standing committees when required. The Secretary 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, the Chairman of the Board, the Chief Executive Officer
or President. If the Secretary shall be unable or shall refuse to cause to
be given notice of all meetings of the stockholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors, the Chairman of the Board, the Chief Executive Officer or
the President may choose another officer to cause such notice to be given.
The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any 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
9. 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. The Treasurer 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, the
Chief Executive Officer and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation. If required
by the Board of Directors, the Treasurer shall give the Corporation a bond in
such sum 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.
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Section
10. Chief Financial
Officer. The Chief Financial Officer, if there be one, shall be the
principal financial officer of the Corporation and shall exercise such duties as
customarily pertain to the office of Chief Financial Officer. The Chief
Financial Officer may sign, execute and deliver in the name of the Corporation
powers of attorney, contracts, bonds, mortgages and other instruments and
obligations of the Corporation and shall perform such other duties and exercise
such other powers as may be prescribed from time to time by the Board of
Directors, the Chief Executive Officer, or the President.
Section
11. Chief Operating
Officer. The Chief Operating Officer, if there be one, shall be the
chief operating officer of the Corporation and shall, subject to the control of
the Board of Directors, the Chief Executive Officer, or the President, have
general supervision over the manufacturing operations of the Corporation.
The Chief Operating Officer may sign, execute and deliver in the name of the
Corporation powers of attorney, contracts, bonds, mortgages and other
instruments and obligations of the Corporation and shall perform such other
duties and exercise such other powers as may be prescribed from time to time by
the Board of Directors, the Chief Executive Officer, or the
President.
Section
12. Controller. The
Controller shall be responsible to the Board of Directors, the Chief Executive
Officer and the President for all financial control and internal audit of the
Corporation and its subsidiaries. If the Board of Directors has not chosen
a Chief Financial Officer, the Controller shall have the powers, duties and
responsibilities of a Chief Financial Officer. The Controller shall
perform such other duties as may be assigned to him or her by the Board of
Directors, the Chief Executive Officer or the President.
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Section
13. Assistant
Vice-Presidents. Except as may otherwise be provided in these
By-Laws, Assistant Vice-Presidents, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chief Executive Officer, the President or any Vice-President,
and in the absence of any Vice-President or in the event of his disability or
his refusal to act, shall perform the duties of such Vice-President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
such Vice-President.
Section
14. Assistant
Secretaries. Except as may be otherwise provided in these By-Laws,
Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the Chief Executive Officer, the President, any Vice-President, if there be one,
or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section
15. Assistant
Treasurers. Assistant Treasurers, if there by any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the Chief Executive Officer, the President, any
Vice-President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of his disability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties of 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
16. Other Officers.
Such other officers as the Board of Directors, the Chairman of the Board of
Directors, if there be one, the Chief Executive Officer or the President may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, if there be one, the Chief Executive Officer or the
President.
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Section
17. Bank Accounts.
In addition to such bank accounts as may be authorized in the usual manner by
resolution of the Board of Directors, the Treasurer or the Controller of the
Corporation with the approval of the Chief Executive Officer or the President or
the Chief Financial Officer may authorize such bank accounts to be opened or
maintained in the name and on behalf of the Corporation as he or she may deem
necessary or appropriate, payments from such bank accounts to be made upon and
according to the check of the Corporation which may be signed jointly or singly
by either the manual or facsimile signature or signatures of such officer or
bonded employees of the Corporation as shall be specified in the written
instructions of the Treasurer or the Controller of the Corporation with the
approval of the Chief Executive Officer, President, or the Chief Financial
Officer of the Corporation.
ARTICLE
V
STOCK
Section
1. Form of
Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the
Chairman of the Board of Directors, the President or a Vice-President and (ii)
by 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.
Section
2. Lost
Certificates. The Board of Directors may direct a new certificate
to be issued in place of any certificate 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, the Board
of Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of
Directors shall require and/or to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
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Section
3. Transfers.
Stock of the Corporation shall be transferable in the manner prescribed by law
and in these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney
lawfully constituted in writing and upon the surrender of the certificate
therefor, which shall be cancelled before a new certificate shall be
issued.
Section
4. 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 express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty days nor less than ten days before the date of such meeting, nor
more than sixty 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,
however1
that the Board of Directors may fix a new record date for the adjourned
meeting
Section
5. Beneficial
Owners. 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
law.
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ARTICLE
VI
NOTICES
Section
1. Notices.
Whenever written notice is required by law, the Certificate of Incorporation or
these By-Laws, to be given to any director, member of a committee or
stockholder, such notice may be given by mail, addressed to such director,
member of a committee 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. Written notice may also be given personally or by telegram,
telex or cable.
Section
2. Waivers of
Notice. Whenever any notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any director, member of a
committee or stockholder, 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.
ARTICLE
VII
GENERAL
PROVISIONS
Section
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, and may be paid in cash, in
property, or in shares of capital stock. 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 its
absolute discretion, deems 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 any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
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Section
2. Disbursements.
All checks or demands for money and notes of the Corporation shall be signed by
such officer or officers to such other person or persons as the Board of
Directors may from time to time designate.
Section
3. Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
Section
4. Corporate Seal.
The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words "Corporate Seal. Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced otherwise.
ARTICLE
VIII
INDEMNIFICATION
Section
1. Power to Indemnify in
Actions. Suits or Proceedings other Than Those by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify 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 (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in the manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a please 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 he reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
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Section
2. Power to Indemnify in
Actions Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall 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 he is or was a director, officer or employee of the Corporation, or is
or was serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such 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
which the Court of Chancery or such other court shall deem proper.
Section
3. Authorization of
Indemnification. Any indemnification under this Article VIII
(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 or employee is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or Section 2 of this
Article VIII, as the case may be. 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. To the extent, however, that a director,
officer or employee of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
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Section
4. Good Faith
Defined. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the Corporation
or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise. The term
“another enterprise" as used in this Section 4 shall mean any other corporation
or any partnership, joint venture, trust or other enterprise of which such
person is or was serving at the request of the Corporation as a director,
officer or employee. The provisions of this Section 4 shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Sections 1
or 2 of this Article VIII, as the case may be.
Section
5. Indemnification by a
Court. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director, officer or employee may
apply to any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Sections 1 and 2 of
this Article VIII. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the director, officer
or employee is proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be. Notice of any application for indemnification pursuant
to this Section 5 shall be given to the Corporation promptly upon the filing of
such application.
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Section
6. Expenses Payable in
Advance. Expenses incurred in defending or investigating a
threatened or pending action, suit or proceeding may be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director, officer or employee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII.
Section
7. Non-exclusivity and Survival
of Indemnification. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article
VIII shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
By-Law, agreement, contract, vote of stockholders or disinterested directors or
pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by
law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 1 or
2 of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article VIII shall, unless otherwise provided
when authorized or ratified, 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.
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Section
8. Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer or employee of the Corporation, or is or was serving
at the request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the
provisions of this Article VIII.
Section
9. Meaning of "Corporation" for
Purposes of Article VIII. For purposes of this Article VIII,
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, and employees so that any person who is or was a director,
officer or employee of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article VIII with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
Section
10. Meaning of "other
enterprises" and certain other terms for Purposes of Article
VIII. For purposes of this Article VIII, 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; and 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 he 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.
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ARTICLE
IX
AMENDMENTS
Section
1. These By-Laws may
be altered, amended or repealed, in whole or in part, or new By-Laws may be
adopted by the stockholders or by the Board of Director; provided, however, that
notice of such alteration, amendment, repeal or adoption of new By-Laws be
contained in the notice of such meeting of stockholders or Board of Directors,
as the case may be. All such amendments must be approved by either
the holders of a majority of the outstanding capital stock entitled to vote
thereon or by a majority of the entire Board of Directors then in
office.
Section
2. Entire Board of
Directors. As used in this Article IX and in these By-Laws
generally, the term "entire Board of Directors" means the total number of
directors which the Corporation would have if there were no
vacancies.
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