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S-1 - WINDGATE ACQUISITION LTD | v210183_s1.htm |
EX-2.3 - WINDGATE ACQUISITION LTD | v210183_ex2-3.htm |
EX-2.1 - WINDGATE ACQUISITION LTD | v210183_ex2-1.htm |
EX-3.1 - WINDGATE ACQUISITION LTD | v210183_ex3-1.htm |
EX-4.1 - WINDGATE ACQUISITION LTD | v210183_ex4-1.htm |
EX-2.2 - WINDGATE ACQUISITION LTD | v210183_ex2-2.htm |
EX-23.1 - WINDGATE ACQUISITION LTD | v210183_ex23-1.htm |
WINDGATE
ACQUISITION LTD.
By-Laws
Article
I
The
Stockholders
Section 1.1. Annual
Meeting. The annual meeting of the stockholders of Windgate
Acquisition Ltd. (the "Corporation") shall be held on the third Thursday in May
of each year at 10:30 a.m. local time, or at such other date or time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, for the election of directors and for the transaction of such
other business as may come before the meeting.
Section 1.2. Special
Meetings. A special meeting of the stockholders may be called
at any time by the written resolution or request of two-thirds or more of the
members of the Board of Directors, the president, or any executive vice
president and shall be called upon the written request of the holders of
two-thirds or more in amount, of each class or series of the capital stock of
the Corporation entitled to vote at such meeting on the matters(s) that are the
subject of the proposed meeting, such written request in each case to specify
the purpose or purposes for which such meeting shall be called, and with respect
to stockholder proposals, shall further comply with the requirements of this
Article.
Section 1.3. Notice of
Meetings. Written notice of each meeting of stockholders,
whether annual or special, stating the date, hour and place where it is to be
held, shall be served either personally or by mail, not less than fifteen nor
more than sixty days before the meeting, upon each stockholder of record
entitled to vote at such meeting, and to any other stockholder to whom the
giving of notice may be required by law. Notice of a special meeting
shall also state the purpose or purposes for which the meeting is called and
shall indicate that it is being issued by, or at the direction of, the person or
persons calling the meeting. If, at any meeting, action is proposed
to be taken that would, if taken, entitle stockholders to receive payment for
their stock, the notice of such meeting shall include a statement of that
purpose and to that effect. If mailed, notice shall be deemed to be
delivered when deposited in the United States mail or with any private express
mail service, postage or delivery fee prepaid, and shall be directed to each
such stockholder at his address, as it appears on the records of the
stockholders of the Corporation, unless he shall have previously filed with the
secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case, it shall be mailed to the address
designated in such request.
Section 1.4. Fixing Date
of Record. (a) 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 a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten 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 shall 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 shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
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(b) In
order that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting (to the extent that such action by
written consent is permitted by law, the Certificate of Incorporation or these
By-Laws), the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in its state
of incorporation, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior
action.
(c) In
order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto.
Section
1.5. Inspectors. At each meeting of the
stockholders, the polls shall be opened and closed and the proxies and ballots
shall be received and be taken in charge. All questions touching on
the qualification of voters and the validity of proxies and the acceptance or
rejection of votes, shall be decided by one or more inspectors. Such
inspectors shall be appointed by the Board of Directors before or at the
meeting, or, if no such appointment shall have been made, then by the presiding
officer at the meeting. If for any reason any of the inspectors
previously appointed shall fail to attend or refuse or be unable to serve,
inspectors in place of any so failing to attend or refusing or unable to serve
shall be appointed in like manner.
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Section
1.6. Quorum. At any meeting of the stockholders,
the holders of a majority of the shares entitled to vote, represented in person
or by proxy, shall constitute a quorum of the stockholders for all purposes,
unless the representation of a larger number shall be required by law, and, in
that case, the representation of the number so required shall constitute a
quorum.
If the
holders of the amount of stock necessary to constitute a quorum shall fail to
attend in person or by proxy at the time and place fixed in accordance with
these By-Laws for an annual or special meeting, a majority in interest of the
stockholders present in person or by proxy may adjourn, from time to time,
without notice other than by announcement at the meeting, until holders of the
amount of stock requisite to constitute a quorum shall attend. At any
such adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section
1.7. Business. The chairman of the Board, if any,
the president, or in his absence the vice-chairman, if any, or an executive vice
president, in the order named, shall call meetings of the stockholders to order,
and shall act as chairman of such meeting; provided, however, that the Board of
Directors or executive committee may appoint any stockholder to act as chairman
of any meeting in the absence of the chairman of the Board. The
secretary of the Corporation shall act as secretary at all meetings of the
stockholders, but in the absence of the secretary at any meeting of the
stockholders, the presiding officer may appoint any person to act as secretary
of the meeting.
Section 1.8. Stockholder
Proposals. No proposal by a stockholder shall be presented for
vote at a special or annual meeting of stockholders unless such stockholder
shall, not later than the close of business on the fifth day following the date
on which notice of the meeting is first given to stockholders, provide the Board
of Directors or the secretary of the Corporation with written notice of
intention to present a proposal for action at the forthcoming meeting of
stockholders, which notice shall include the name and address of such
stockholder, the number of voting securities that he holds of record and that he
holds beneficially, the text of the proposal to be presented to the meeting and
a statement in support of the proposal.
Any
stockholder who was a stockholder of record on the applicable record date may
make any other proposal at an annual meeting or special meeting of stockholders
and the same may be discussed and considered, but unless stated in writing and
filed with the Board of Directors or the secretary prior to the date set forth
herein above, such proposal shall be laid over for action at an adjourned,
special, or annual meeting of the stockholders taking place sixty days or more
thereafter. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors,
and committees, but in connection with such reports, no new business proposed by
a stockholder, qua stockholder,
shall be acted upon at such annual meeting unless stated and filed as herein
provided.
Notwithstanding
any other provision of these By-Laws, the Corporation shall be under no
obligation to include any stockholder proposal in its proxy statement materials
or otherwise present any such proposal to stockholders at a special or annual
meeting of stockholders if the Board of Directors reasonably believes the
proponents thereof have not complied with Sections 13 or 14 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder; nor
shall the Corporation be required to include any stockholder proposal not
required to be included in its proxy materials to stockholders in accordance
with any such section, rule or regulation.
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Section
1.9. Proxies. At all meetings of stockholders, a
stockholder entitled to vote may vote either in person or by proxy executed in
writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary before
or at the time of the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the
proxy.
Section 1.10. Voting by
Ballot. The votes for directors, and upon the demand of any
stockholder or when required by law, the votes upon any question before the
meeting, shall be by ballot.
Section 1.11. Voting
Lists. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of stock registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
Section 1.12. Place of
Meeting. The Board of Directors may designate any place,
either within or without the state of incorporation, as the place of meeting for
any annual meeting or any special meeting called by the Board of
Directors. If no designation is made or if a special meeting is
otherwise called, the place of meeting shall be the principal office of the
Corporation.
Section 1.13. Voting of
Stock of Certain Holders. Shares of capital stock of the
Corporation standing in the name of another corporation, domestic or foreign,
may be voted by such officer, agent, or proxy as the by-laws of such corporation
may prescribe, or in the absence of such provision, as the board of directors of
such corporation may determine.
Shares of
capital stock of the Corporation standing in the name of a deceased person, a
minor ward or an incompetent person may be voted by his administrator, executor,
court-appointed guardian or conservator, either in person or by proxy, without a
transfer of such stock into the name of such administrator, executor,
court-appointed guardian or conservator. Shares of capital stock of
the Corporation standing in the name of a trustee may be voted by him, either in
person or by proxy.
Shares of
capital stock of the Corporation standing in the name of a receiver may be
voted, either in person or by proxy, by such receiver, and stock held by or
under the control of a receiver may be voted by such receiver without the
transfer thereof into his name if authority to do so is contained in any
appropriate order of the court by which such receiver was
appointed.
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A
stockholder whose stock is pledged shall be entitled to vote such stock, either
in person or by proxy, until the stock has been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote, either in person
or by proxy, the stock so transferred.
Shares of
its own capital stock belonging to this Corporation shall not be voted, directly
or indirectly, at any meeting and shall not be counted in determining the total
number of outstanding stock at any given time, but shares of its own stock held
by it in a fiduciary capacity may be voted and shall be counted in determining
the total number of outstanding stock at any given time.
Article
II
Board of
Directors
Section 2.1. General
Powers. The business, affairs, and the property of the
Corporation shall be managed and controlled by the Board of Directors (the
"Board"), and, except as otherwise expressly provided by law, the Certificate of
Incorporation or these By-Laws, all of the powers of the Corporation shall be
vested in the Board.
Section 2.2. Number of
Directors. The number of directors which shall constitute the
whole Board shall be not fewer than one nor more than five. Within
the limits above specified, the number of directors shall be determined by the
Board of Directors pursuant to a resolution adopted by a majority of the
directors then in office.
Section 2.3. Election,
Term and Removal. Directors shall be elected at the annual
meeting of stockholders to succeed those directors whose terms have
expired. Each director shall hold office for the term for which
elected and until his or her successor shall be elected and qualified. Directors
need not be stockholders. A director may be removed from office at a
meeting expressly called for that purpose by the vote of not less than a
majority of the outstanding capital stock entitled to vote at an election of
directors.
Section
2.4. Vacancies. Vacancies in the Board of
Directors, including vacancies resulting from an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors then in office, though less than a quorum; except that vacancies
resulting from removal from office by a vote of the stockholders may be filled
by the stockholders at the same meeting at which such removal occurs provided
that the holders of not less than a majority of the outstanding capital stock of
the Corporation (assessed upon the basis of votes and not on the basis of number
of shares) entitled to vote for the election of directors, voting together as a
single class, shall vote for each replacement director. All directors
elected to fill vacancies shall hold office for a term expiring at the time of
the next annual meeting of stockholders and upon election and qualification of
his successor. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of an incumbent
director.
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Section
2.5. Resignations. Any director of the Corporation
may resign at any time by giving written notice to the president or to the
secretary of the Corporation. The resignation of any director shall
take effect at the time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 2.6. Place of
Meetings, etc. The Board of Directors may hold its meetings,
and may have an office and keep the books of the Corporation (except as
otherwise may be provided for by law), in such place or places in or outside the
state of incorporation as the Board from time
to time
may determine.
Section 2.7. Regular
Meetings. Regular meetings of the Board of Directors shall be
held as soon as practicable after adjournment of the annual meeting of
stockholders at such time and place as the Board of Directors may
fix. No notice shall be required for any such regular meeting of the
Board.
Section 2.8. Special
Meetings. Special meetings of the Board of Directors shall be
held at places and times fixed by resolution of the Board of Directors, or upon
call of the chairman of the Board, if any, or vice-chairman of the Board, if
any, the president, an executive vice president or two-thirds of the directors
then in office.
The
secretary or officer performing the secretary's duties shall give not less than
twenty-four hours' notice by letter, telegraph, email, or telephone (or in
person) of all special meetings of the Board of Directors, provided that notice
need not given of the annual meeting or of regular meetings held at times and
places fixed by resolution of the Board. Meetings may be held at any
time without notice if all of the directors are present, or if those not present
waive notice in writing either before or after the meeting. The
notice of meetings of the Board need not state the purpose of the
meeting.
Section 2.9. Participation
by Conference Telephone. Members of the Board of Directors of
the Corporation, or any committee thereof, may participate in a regular or
special or any other meeting of the Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
Section 2.10. Action by
Written Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors, or of any committee thereof, may be
taken without a meeting if prior or subsequent to such action all the members of
the Board or such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of the proceedings of the
Board or committee.
Section
2.11. Quorum. A majority of the total number of
directors then in office shall constitute a quorum for the transaction of
business; but if at any meeting of the Board there be less than a quorum
present, a majority of those present may adjourn the meeting from time to
time.
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Section
2.12. Business. Business shall be transacted at
meetings of the Board of Directors in such order as the Board may
determine. At all meetings of the Board of Directors, the chairman of
the Board, if any, the president, or in his absence the vice-chairman, if any,
or an executive vice president, in the order named, shall preside.
Section 2.13. Interest of
Directors in Contracts. (a) No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the Corporation's
directors or officers, are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if:
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(1)
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The
material facts as to his relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less
than a quorum; or
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(2)
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The
material facts as to his relationship or interest and as to the contract
or transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders;
or
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(3)
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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
of the Board of Directors or the
stockholders.
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(b) Interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 2.14. Compensation
of Directors. Each director of the Corporation whether or not
a salaried officer or employee of the Corporation, or of a subsidiary of the
Corporation, shall receive such allowances for serving as a director and such
fees for attendance at meetings of the Board of Directors or the executive
committee or any other committee appointed by the Board as the Board may from
time to time determine.
Section 2.15. Loans to
Officers or Employees. The Board of Directors may lend money
to, guarantee any obligation of, or otherwise assist, any officer or other
employee of the Corporation or of any subsidiary, whether or not such officer or
employee is also a director of the Corporation, whenever, in the judgment of the
directors, such loan, guarantee, or assistance may reasonably be expected to
benefit the Corporation; provided, however, that any such loan, guarantee, or
other assistance given to an officer or employee who is also a director of the
Corporation must be authorized by a majority of the entire Board of
Directors. Any such loan, guarantee, or other assistance may be made
with or without interest and may be unsecured or secured in such manner as the
Board of Directors shall approve, including, but not limited to, a pledge of
shares of the Corporation, and may be made upon such other terms and conditions
as the Board of Directors may determine.
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Section
2.16. Nomination. Subject to the rights of holders
of any class or series of stock having a preference over the common stock as to
dividends or upon liquidation, nominations for the election of directors may be
made by the Board of Directors or by any stockholder entitled to vote in the
election of directors generally. However, any stockholder entitled to
vote in the election of directors generally may nominate one or more persons for
election as directors at a meeting only if written notice of such stockholder's
intent to make such nomination or nominations has been 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, the close of business on the last day of the
eighth month after the immediately preceding annual meeting of stockholders, 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 fifth 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 the 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 the 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 the stockholder; (d) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the 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 so elected. The
presiding officer at the meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
Article
III
Committees
Section
3.1. Committees. The Board of Directors, by
resolution adopted by a majority of the number of directors then fixed by these
By-Laws or resolution thereto, may establish such standing or special committees
of the Board as it may deem advisable, and the members, terms, and authority of
such committees shall be set forth in the resolutions establishing such
committee.
Section 3.2. Executive
Committee Number and Term of Office. The Board of Directors
may, at any meeting, by majority vote of the Board of Directors, elect from the
directors an executive committee. The executive committee shall
consist of such number of members as may be fixed from time to time by
resolution of the Board of Directors. The Board of Directors may
designate a chairman of the committee who shall preside at all meetings thereof,
and the committee shall designate a member thereof to preside in the absence of
the chairman.
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Section 3.3. Executive
Committee Powers. The executive committee may, while the Board
of Directors is not in session, exercise all or any of the powers of the Board
of Directors in all cases in which specific directions shall not have been given
by the Board of Directors; except that the executive committee shall not have
the power or authority of the Board of Directors to (i) amend the Certificate of
Incorporation or the By-Laws of the Corporation, (ii) fill vacancies on the
Board of Directors, (iii) adopt an agreement or certification of ownership,
merger or consolidation, (iv) recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
or a dissolution of the Corporation or a revocation of a dissolution, (v)
declare a dividend, or (vi) authorize the issuance of stock.
Section 3.4. Executive
Committee Meetings. Regular and special meetings of the
executive committee may be called and held subject to the same requirements with
respect to time, place and notice as are specified in these By-Laws for regular
and special meetings of the Board of Directors. Special meetings of
the executive committee may be called by any member thereof. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special or regular meeting of the executive meeting if a quorum
is present. At any meeting at which every member of the executive
committee shall be present, in person or by telephone, even though without any
notice, any business may be transacted. All action by the executive
committee shall be reported to the Board of Directors at its meeting next
succeeding such action.
The
executive committee shall fix its own rules of procedure, and shall meet where
and as provided by such rules or by resolution of the Board of Directors, but in
every case the presence of a majority of the total number of members of the
executive committee shall be necessary to constitute a quorum. In
every case, the affirmative vote of a quorum shall be necessary for the adoption
of any resolution.
Section 3.5. Executive Committee
Vacancies. The Board of Directors, by majority vote of the
Board of Directors then in office, shall fill vacancies in the executive
committee by election from the directors.
Article
IV
The
Officers
Section 4.1. Number and
Term of Office. The officers of the Corporation may consist
of, as the Board of Directors may determine and appoint from time to time, a
chief executive officer, a president, one or more executive vice-presidents, a
secretary, a treasurer, a controller, and/or such other officers as may from
time to time be elected or appointed by the Board of Directors, including such
additional vice-presidents with such designations, if any, as may be determined
by the Board of Directors and such assistant secretaries and assistant
treasurers. In addition, the Board of Directors may elect a chairman
of the Board and may also elect a vice-chairman as officers of the
Corporation. Any two or more offices may be held by the same
person. In its discretion, the Board of Directors may leave unfilled
any office except as may be required by law.
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The
officers of the Corporation shall be elected or appointed from time to time by
the Board of Directors. Each officer shall hold office until his
successor shall have been duly elected or appointed or until his death or until
he shall resign or shall have been removed by the Board of
Directors.
Each of
the salaried officers of the Corporation shall devote such time, skill and
energy to the business of the Corporation as requested by the Board of
Directors, unless the contrary is expressly consented to by the Board of
Directors or the executive committee.
Section
4.2. Removal. Any officer may be removed by the
Board of Directors whenever, in its judgment, the best interests of the
Corporation would be served thereby.
Section 4.3. The Chairman
of the Board. The chairman of the Board, if any, shall preside
at all meetings of stockholders and of the Board of Directors and shall have
such other authority and perform such other duties as are prescribed by law, by
these By-Laws and by the Board of Directors. The Board of Directors
may designate the chairman of the Board as chief executive officer, in which
case he shall have such authority and perform such duties as are prescribed by
these By-Laws and the Board of Directors for the chief executive
officer.
Section 4.4. The
Vice-Chairman. The vice-chairman, if any, shall have such
authority and perform such other duties as are prescribed by these By-Laws and
by the Board of Directors. In the absence or inability to act of the
chairman of the Board and the president, he shall preside at the meetings of the
stockholders and of the Board of Directors and shall have and exercise all of
the powers and duties of the chairman of the Board. The Board of
Directors may designate the vice-chairman as chief executive officer, in which
case he shall have such authority and perform such duties as are prescribed by
these By-Laws and the Board of Directors for the chief executive
officer.
Section 4.5. The
President. The president shall have such authority and perform
such duties as are prescribed by law, by these By-Laws, by the Board of
Directors and by the chief executive officer (if the president is not the chief
executive officer). The president, if there is no chairman of the
Board, or in the absence or the inability to act of the chairman of the Board,
shall preside at all meetings of stockholders and of the Board of
Directors. Unless the Board of Directors designates the chairman of
the Board or the vice-chairman as chief executive officer, the president shall
be the chief executive officer, in which case he shall have such authority and
perform such duties as are prescribed by these By-Laws and the Board of
Directors for the chief executive officer.
Section 4.6. The Chief
Executive Officer. Unless the Board of Directors designates
the chairman of the Board or the vice-chairman as chief executive officer, the
president shall be the chief executive officer. The chief executive
officer of the Corporation shall have, subject to the supervision and direction
of the Board of Directors, general supervision of the business, property and
affairs of the Corporation, including the power to appoint and discharge agents
and employees, and the powers vested in him by the Board of Directors, by law or
by these By-Laws or which usually attach or pertain to such
office.
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Section 4.7. The Executive
Vice-Presidents. In the absence of the chairman of the Board,
if any, the president and the vice-chairman, if any, or in the event of their
inability or refusal to act, the executive vice-president (or in the event there
is more than one executive vice-president, the executive vice-presidents in the
order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the chairman of the Board, of the
president and of the vice-chairman, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the chairman of the Board,
the president and the vice-chairman. Any executive vice-president may
sign, with the secretary or an authorized assistant secretary, certificates for
stock of the Corporation and shall perform such other duties as from time to
time may be assigned to him by the chairman of the Board, the president, the
vice-chairman, the Board of Directors or these By-Laws.
Section 4.8. The
Vice-Presidents. The vice-presidents, if any, shall perform
such duties as may be assigned to them from time to time by the chairman of the
Board, the president, the vice-chairman, the Board of Directors, or these
By-Laws.
Section 4.9. The
Treasurer. Subject to the direction of chief executive officer
and the Board of Directors, the treasurer shall have charge and custody of all
the funds and securities of the Corporation; when necessary or proper he shall
endorse for collection, or cause to be endorsed, on behalf of the Corporation,
checks, notes and other obligations, and shall cause the deposit of the same to
the credit of the Corporation in such bank or banks or depositary as the Board
of Directors may designate or as the Board of Directors by resolution may
authorize; he shall sign all receipts and vouchers for payments made to the
Corporation other than routine receipts and vouchers, the signing of which he
may delegate; he shall sign all checks made by the Corporation (provided,
however, that the Board of Directors may authorize and prescribe by resolution
the manner in which checks drawn on banks or depositories shall be signed,
including the use of facsimile signatures, and the manner in which officers,
agents or employees shall be authorized to sign); unless otherwise provided by
resolution of the Board of Directors, he shall sign with an officer-director all
bills of exchange and promissory notes of the Corporation; whenever
required by the Board of Directors, he shall render a statement of his cash
account; he shall enter regularly full and accurate account of the Corporation
in books of the Corporation to be kept by him for that purpose; he shall, at all
reasonable times, exhibit his books and accounts to any director of the
Corporation upon application at his office during business hours; and he shall
perform all acts incident to the position of treasurer. If required
by the Board of Directors, the treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such sure ties as the Board of
Directors may require.
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Section 4.10. The
Secretary. The secretary shall keep the minutes of all
meetings of the Board of Directors, the minutes of all meetings of the
stockholders and (unless otherwise directed by the Board of Directors) the
minutes of all committees, in books provided for that purpose; he shall attend
to the giving and serving of all notices of the Corporation; he may sign with an
officer-director or any other duly authorized person, in the name of the
Corporation, all contracts authorized by the Board of Directors or by the
executive committee, and, when so ordered by the Board of Directors or the
executive committee, he shall affix the seal of the Corporation thereto; he may
sign with the president or an executive vice-president all certificates of
shares of the capital stock; he shall have charge of the certificate books,
transfer books and stock ledgers, and such other books and papers as the Board
of Directors or the executive committee may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon application
at the secretary's office during business hours; and he shall in general perform
all the duties incident to the office of the secretary, subject to the control
of the chief executive officer and the Board of Directors.
Section 4.11. The
Controller. The controller shall be the chief accounting
officer of the Corporation. Subject to the supervision of the Board
of Directors, the chief executive officer and the treasurer, the controller
shall provide for and maintain adequate records of all assets, liabilities and
transactions of the Corporation, shall see that accurate audits of the
Corporation's affairs are currently and adequately made and shall perform such
other duties as from time to time may be assigned to him.
Section 4.12. The
Assistant Treasurers and Assistant Secretaries. The assistant
treasurers shall respectively, if required by the Board of Directors, give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the Board of Directors may determine. The assistant secretaries as
thereunto authorized by the Board of Directors may sign with the chairman of the
Board, the president, the vice-chairman or an executive vice-president,
certificates for stock of the Corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors. The assistant
treasurers and assistant secretaries, in general, shall perform such duties as
shall be assigned to them by the treasurer or the secretary, respectively, or
chief executive officer, the Board of Directors, or these By-Laws.
Section
4.13. Salaries. The salaries of the officers shall
be fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
Section 4.14. Voting upon
stocks. Unless otherwise ordered by the Board of Directors or
by the executive committee, any officer, director or any person or persons
appointed in writing by any of them, shall have full power and authority in
behalf of the Corporation to attend and to act and to vote at any meetings of
stockholders of any corporation in which the Corporation may hold stock, and at
any such meeting shall possess and may exercise any and all the rights and
powers incident to the ownership of such stock, and which, as the owner thereof,
the Corporation might have possessed and exercised if present. The
Board of Directors may confer like powers upon any other person or
persons.
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Article
V
Contracts
and Loans
Section
5.1. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
Section
5.2. Loans. No loans shall be contracted on behalf
of the Corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Article
VI
Certificates
for Stock and Their Transfer
Section 6.1. Certificates
for Stock. Certificates representing stock of the Corporation
shall be in such form as may be determined by the Board of
Directors. Such certificates shall be signed by the chairman of the
Board, the president, the vice-chairman or an executive vice-president and/or by
the secretary or an authorized assistant secretary and shall be sealed with the
seal of the Corporation. The seal may be a facsimile. If a
stock certificate is countersigned (i) by a transfer agent other than the
Corporation or its employee, or (ii) by a registrar other than the Corporation
or its employee, any other signature on the certificate may be a
facsimile. In the event that any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of
issue. All certificates for stock shall be consecutively numbered or
otherwise identified. The name of the person to whom the shares of
stock represented thereby are issued, with the number of shares of stock and
date of issue, shall be entered on the books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be canceled and
no new certificates shall be issued until the former certificate for a like
number of shares of stock shall have been surrendered and canceled, except that,
in the event of a lost, destroyed or mutilated certificate, a new one may be
issued therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
Section 6.2. Transfers of
Stock. Transfers of stock of the Corporation shall be made
only on the books of the Corporation by the holder of record thereof or by his
legal representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the secretary of the Corporation, and on surrender for
cancellation of the certificate for such stock. The person in whose
name stock stands on the books of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation.
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Article
VII
Fiscal
Year
Section 7.1. Fiscal
Year. The fiscal year of the Corporation shall begin on the
first day of January in each year and end on the last day of December in each
year.
Article
VIII
Seal
Section
8.1. Seal. The Board of Directors shall approve a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation.
Article
IX
Waiver of
Notice
Section 9.1. Waiver of
Notice. Whenever any notice is required to be given under the
provisions of these By-Laws or under the provisions of the Certificate of
Incorporation or under the provisions of the corporation law of the state of
incorporation, waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Attendance of any
person at a meeting for which any notice is required to be given under the
provisions of these By-Laws, the Certificate of Incorporation or the corporation
law of the state of incorporation shall constitute a waiver of notice of such
meeting except when the person attends 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.
Article
X
Amendments
Section
10.1. Amendments. These By-Laws may be altered,
amended or repealed and new By-Laws may be adopted at any meeting of the Board
of Directors of the Corporation by the affirmative vote of a majority of the
members of the Board, or by the affirmative vote of a majority of the
outstanding capital stock of the Corporation (assessed upon the basis of votes
and not on the basis of number of shares) entitled to vote generally in the
election of directors, voting together as a single class.
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Article
XI
Indemnification
Section
11.1. Indemnification. The Corporation shall
indemnify its officers, directors, employees and agents to the fullest extent
permitted by the General Corporation Law of Delaware, as amended from time to
time.
[END]