By-Laws - AmericanGreetings.com Inc.
AMERICANGREETINGS.COM, INC.
(the "Corporation")
BY-LAWS
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ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office and/or registered
agent of the Corporation shall be as provided in the Certificate of
Incorporation.
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 or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE AND TIME OF MEETINGS. An annual meeting of the
stockholders shall be held each year on the 3rd Monday in June, unless such day
should fall on a legal holiday, in which event the meeting shall be held at the
same hour on the next succeeding business day that is not a legal holiday, for
the purpose of electing directors and conducting such other proper business as
may come before the meeting. The date, time and place of the annual meeting
shall be determined by resolution of the Board of Directors or as set by the
Chief Executive Officer or the President of the Corporation. If the Chief
Executive Officer or the President does not act, the Board of Directors shall
determine the date, time and place of such meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders may be
called for any purpose and may be held at such time and place, within or without
the State of Delaware, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Special meetings of stockholders may be
called at any time by the Board of Directors, the Chief Executive Officer or the
President of the Corporation.
SECTION 3. PLACE OF MEETINGS. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the Board of
Directors, the Chief Executive Officer or the President. If no designation is
made, or if a special meeting be otherwise called, the place of meeting shall be
the principal executive office of the Corporation.
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SECTION 4. NOTICE AND WAIVER OF NOTICE. Unless otherwise provided by
statute or the Corporation's Certificate of Incorporation, whenever stockholders
are required or permitted to take action at a meeting, written or printed notice
stating the place, date, time, and, in the case of special meetings, the purpose
or purposes, of such meeting, shall be given to each stockholder entitled to
vote at such meeting not less than ten (10) nor more than sixty (60) days before
the date of the meeting. All such notices shall be delivered, either personally
or by mail, by or at the direction of the Board of Directors, the Chairman of
the Board, the Chief Executive Officer, the President or the Secretary, and if
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, postage prepaid, addressed to the stockholder at his, her or its
address as the same appears on the records of the Corporation.
Whenever the giving of any notice is required by statute, the
Corporation's Certificate of Incorporation or these By-laws, a waiver thereof,
in writing and delivered to the Corporation, signed by the person or person
entitled to said notice, whether before or after the event as to which such
notice is required, shall be deemed equivalent to notice. Unless otherwise
provided by the Corporation's Certificate of Incorporation, neither the business
to be transacted at, or the purpose of, any regular or special meeting need be
specified in any written waiver of notice.
Attendance of a stockholder at a meeting shall constitute a waiver of
notice (a) 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 and (b) (if it
is a special meeting) of consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
except when the stockholder objects at the beginning of the meeting to
considering the matter at the meeting.
SECTION 5. FIXING A RECORD DATE FOR STOCKHOLDER MEETINGS. 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 (60) nor less than
ten (10) days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be the close of business
on the next day 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.
SECTION 6. FIXING A RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall 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 (10) days after the date upon which the
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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
statute, 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 the State of Delaware, 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
statute, 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.
SECTION 7. FIXING A RECORD DATE FOR OTHER PURPOSES. In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purposes 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 (60) 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 8. STOCKHOLDERS LIST. The officer having charge of the stock
ledger of the Corporation shall make, at least ten (10) days before every
meeting of the stockholders, a complete list of the stockholders entitled to
vote at such meeting arranged in alphabetical order, showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 9. QUORUM. Unless otherwise provided by statute or the
Corporation's Certificate of Incorporation, the holders of a majority of the
outstanding shares of capital stock entitled to vote at a meeting, present in
person or represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of the stockholders. If a quorum is not present, the
holders of a majority of the shares present in person or represented by proxy at
the meeting, and entitled to vote at the meeting, may adjourn the meeting to
another time and/or place. When a specified item of business requires a vote by
a class or series (if the Corporation shall then have outstanding shares of more
than one class or series) entitled to vote on the matter at hand as a single
class, the holders of a majority of the shares of such class or series shall
constitute a quorum (as to such class or series) for the transaction of such
item of business. If a quorum be
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initially present, the stockholders may transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum, if any action taken is approved by a majority of the stockholders
initially constituting the quorum.
SECTION 10. ADJOURNED MEETINGS. Any meeting of the stockholders,
annual, regular or special, may be adjourned from time to time to reconvene at
the same or some other place. Notice need not be given of the adjourned meeting
if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 11. VOTE REQUIRED. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the question is one upon which by express provisions of an
applicable law or of the Corporation's Certificate of Incorporation a different
vote is required, in which case such express provision shall govern and control
the decision of such question. Voting on any question or in any election need
not be by written ballot. Where a separate vote by class is required, the
affirmative vote of the majority of shares of such class present in person or
represented by proxy at the meeting shall be the act of such class.
SECTION 12. VOTING RIGHTS. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the Certificate of Incorporation
of the Corporation or any amendments thereto and subject to Section 3 of Article
VI hereof, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of common stock held
by such stockholder
SECTION 13. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
Any proxy is suspended when the person executing the proxy is present
at a meeting of stockholders and elects to vote, except that when such proxy is
coupled with an interest and the fact of the interest appears on the face of the
proxy, the agent named in the proxy shall have all voting and other rights
referred to in the proxy, notwithstanding the presence of the person executing
the proxy. At each meeting of the stockholders, and before any voting commences,
all proxies filed at or before the meeting shall be submitted to and examined by
the Secretary of the
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Corporation or a person designated by the Secretary, and no shares may be
represented or voted under a proxy that has been found to be invalid or
irregular.
SECTION 14. ACTION BY WRITTEN CONSENT. Unless otherwise provided in the
Corporation's Certificate of Incorporation, any action required to be taken at
any annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken and bearing the dates
of signature of the stockholders who signed the consent or consents, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation by delivery to its registered office in
the state of Delaware, or the Corporation's principal place of business, or an
officer or agent of the Corporation having custody of the book or books in which
proceedings of meetings of the stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. All consents properly delivered in accordance
with this section shall be deemed to be recorded when so delivered. No written
consent shall be effective to take the corporate action referred to therein
unless, within sixty (60) days of the earliest dated consent delivered to the
Corporation as required by this section, written consents signed by the holders
of a sufficient number of shares to take such corporate action are so recorded.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing. Any action taken pursuant to such written consent or
consents of the stockholders shall have the same force and effect as if taken by
the stockholders at a meeting thereof.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. Unless otherwise provided by statute or the
Corporation's Certificate of Incorporation, the business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 2. NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
which shall constitute the first board shall be five (5). Thereafter, the number
of directors shall be established from time to time by resolution of the Board
of Directors. The directors shall be elected by a majority of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote in the election of directors. The directors shall be elected in this manner
at the annual meeting of the stockholders, except as provided in Section 4 of
this Article III. Each director elected shall hold office until a successor is
duly elected and qualified or until his or her earlier resignation or removal as
hereinafter provided.
SECTION 3. REMOVAL AND RESIGNATION. Any director or the entire Board of
Directors may be removed at any time, with or without cause, by the holders of a
majority of the shares
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then entitled to vote at an election of directors. Whenever the holders of any
class or series are entitled to elect one or more directors by the provisions of
the Corporation's Certificate of Incorporation, the provisions of this section
shall apply, in respect to the removal without cause of a director or directors
so elected, to the vote of the holders of the outstanding shares of the class or
series and not to the vote of the outstanding shares as a whole. Any director
may resign at any time upon written notice to the Corporation. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein, no acceptance of such resignation shall be necessary to make it
effective.
SECTION 4. 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. Each director so chosen shall hold office until a
successor is duly elected and qualified or until his or her earlier resignation
or removal.
SECTION 5. ANNUAL MEETINGS. The annual meeting of each newly elected
Board of Directors shall be held without other notice than this by-law
immediately after, and at the same place as, the annual meeting of stockholders.
SECTION 6. OTHER MEETINGS AND NOTICE. Regular meetings, other than the
annual meeting, of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the Board of Directors may be called by or at the
request of the Chief Executive Officer, the President or any Vice President on
at least twenty-four (24) hours notice to each director, either personally, by
telephone, by mail, by telegram, by telex, or by facsimile, and shall be deemed
to have been given when communicated by telephone, when deposited in the United
States mail, when delivered to the telegraph company or transmitted by telex or
facsimile, as the case may be.
SECTION 7. QUORUM, REQUIRED VOTE AND ADJOURNMENT. A majority of the
total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of directors present at a meeting at which a
quorum is present 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 8. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation, which
to the extent provided in such resolution or these by-laws shall have and may
exercise the powers of the Board of Directors in the management and affairs of
the Corporation except as otherwise limited by law. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
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SECTION 9. COMMITTEE RULES. Each committee of the Board of Directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the Board of
Directors designating such committee. Unless otherwise provided in such
resolution, the presence of at least a majority of the members of the committee
shall be necessary to constitute a quorum. In the event that a member and that
member's alternate, if alternates are designated by the Board of Directors as
provided in Section 8 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in place of any such absent or disqualified member.
Section 10. Audit Committee. In the event the Board of Directors, by
resolution, designates an audit committee, the audit committee shall consist of
not fewer than two members of the Board of Directors as shall from time to time
be appointed by resolution of the Board of Directors. The audit committee shall
review and, as it shall deem appropriate, recommend to the Board of Directors
internal accounting and financial controls for the Corporation and accounting
principles and auditing practices and procedures to be employed in the
preparation and review of financial statements of the Corporation. The audit
committee shall make recommendations to the Board of Directors concerning the
engagement of independent public accountants to audit the annual financial
statements of the Corporation and the scope of the audit to be undertaken by
such accountants.
Section 11. Compensation Committee. In the event the Board of
Directors, by resolution, designates an compensation committee, the compensation
committee shall consist of not fewer than two members of the Board of Directors
as from time to time shall be appointed by resolution of the Board of Directors.
The compensation committee shall review and, as it deems appropriate, recommend
to the Chief Executive Officer and the Board of Directors policies, practices
and procedures relating to the compensation of managerial employees and the
establishment and administration of employee benefit plans, except for any stock
option plan(s) which shall be established and administered by the Board of
Directors. The compensation committee shall have and exercise all authority
under any employee stock option plans of the Corporation as the committee
therein (unless the Board of Directors by resolution appoints any other
committee to exercise such authority), and shall otherwise advise and consult
with the officers of the Corporation as may be requested regarding managerial
personnel policies.
SECTION 12. COMMUNICATIONS EQUIPMENT. Members of the Board of Directors
or any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at such meeting.
SECTION 13. WAIVER OF NOTICE AND PRESUMPTION OF ASSENT. Any member of
the Board of Directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except when
such member attends for the
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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. Such
member shall be conclusively presumed to have assented to any action taken
unless his or her dissent shall be entered in the minutes of the meeting or
unless his or her written dissent to such action shall be filed with the person
acting as the Secretary of the meeting before the adjournment thereof or shall
be forwarded by registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to
any member who voted in favor of such action.
SECTION 14. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the Corporation's Certificate of Incorporation, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the board 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 or committee.
SECTION 15. COMPENSATION OF DIRECTORS. Unless otherwise provided by the
Corporation's Certificate of Incorporation, the Board of Directors shall have
the authority to fix the compensation of directors, which compensation may
include the reimbursement of expenses incurred in connection with meetings of
the Board of Directors or a committee thereof.
SECTION 16. INTERESTED DIRECTORS, OFFICERS; QUORUM. 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: (a) 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 of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (b) 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 (c) 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 authorizes the contract or transaction.
SECTION 17. LIMITATION OF LIABILITY. To the full extent permitted by
the General Corporation Law of the State of Delaware or any other applicable
laws presently or hereafter in effect, no director of the Corporation shall be
personally liable to the Corporation or its stockholders for or with respect to
any acts or omissions in the performance of his or her duties as a director of
the Corporation. Any amendment or repeal of, or adoption of any provision
inconsistent with, this Section 17 will not adversely affect any right or
protection existing
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hereunder, or arising out of facts occurring, prior to such amendment, repeal or
adoption and no such amendment, repeal or adoption will affect the legality,
validity or enforceability of any contract entered into or right granted prior
to the effective date of such amendment, repeal or adoption.
ARTICLE IV
OFFICERS
SECTION 1. POSITIONS. The officers of the Corporation shall be elected
by the Board of Directors and shall consist of a Chief Executive Officer, a
Chief Operating Officer, a Chairman of the Board, a President, a Secretary, a
Treasurer, and such other officers and assistant officers as may be deemed
necessary or desirable by the Board of Directors. Any number of offices may be
held by the same person. In its discretion, the Board of Directors may choose
not to fill any office for any period as it may deem advisable, except that the
offices of president and secretary shall be filled as expeditiously as possible.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the Board of Directors at its first meeting held
after the annual meeting of stockholders. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer shall
hold office until a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as hereinafter provided.
SECTION 3. REMOVAL AND RESIGNATION. Any officer or agent elected by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the Corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. The election of an officer or agent shall not of itself create any
contractual rights. Any officer may resign at any time upon written notice to
the Corporation, such resignation shall take effect at the time specified
therein, and unless otherwise specified therein, no acceptance of such
resignation shall be necessary to make it effective.
SECTION 4. VACANCIES. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term by the Board of
Directors then in office.
SECTION 5. COMPENSATION. Compensation of all officers shall be fixed by
the Board of Directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the Corporation.
SECTION 6. POWERS AND DUTIES OF OFFICERS. The officers of the
Corporation shall have such powers and duties as shall be stated in these
By-laws or in a resolution of the Board of Directors which is not inconsistent
with these By-laws and, to the extent not so stated, as generally pertain to
their respective office or offices, subject to the control of the Board of
Directors.
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SECTION 7. CHIEF EXECUTIVE OFFICER. The Board of Directors, at the time
of election of officers or from time to time thereafter, may designate whether
the Chairman of the Board, if one shall have been chosen, or the President shall
be the Chief Executive Officer of the Corporation. If a Chairman of the Board
has not been chosen, or if one has been chosen but not designated Chief
Executive Officer, then the President shall be the Chief Executive Officer of
the Corporation. The Chief Executive Officer shall be the principal executive
officer of the Corporation and shall in general supervise and control all of the
business and affairs of the Corporation, subject to the direction of the Board
of Directors. He shall see that orders and resolutions of the Board of Directors
are carried into effect. He shall have general powers of supervision and shall
be the final arbiter of all differences between officers of the Corporation and
his decision as to any matter affecting the Corporation shall be final and
binding as between the officers of the Corporation subject only to its Board of
Directors.
SECTION 8. CHIEF OPERATING OFFICER. If the Chairman of the Board has
been designated Chief Executive Officer of the Corporation, the Board of
Directors, at the time of election of officers or at any other time, may
designate the President as the Chief Operating Officer. The Chief Operating
Officer, if any, shall in general supervise and control all of the operational
aspects of the business of the Corporation, subject to the direction of the
Chief Executive Officer and the Board of Directors. He shall be present at all
meetings of the stockholders and the Board of Directors and shall see that
orders and resolutions of the Board of Directors are carried into effect.
SECTION 9. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one is
chosen, shall be chosen from among the members of the Board of Directors. The
Chairman of the Board shall preside at all meetings of the stockholders and at
all meetings of the Board of Directors. If the Chairman of the Board has been
designated Chief Executive Officer, he shall have the duties thereof, if not so
designated, he shall have no other duties.
SECTION 10. PRESIDENT. If the Chairman of the Board has been designated
Chief Executive Officer, and the President has been designated Chief Operating
Officer, the President shall have the duties of the Chief Operating Officer. If
the Chairman of the Board has not been designated Chief Executive Officer, the
President shall have the duties of the Chief Executive Officer. In the absence
of the Chairman of the Board or in the event of his inability to act, the
President shall perform the duties of the Chairman of the Board and when so
acting, shall have all of the powers of, and be subject to all of the
restrictions upon, the Chairman of the Board.
SECTION 11. VICE-PRESIDENTS. The Vice-President, or if there shall be
more than one, the Vice-Presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the President, act with all of
the powers and be subject to all the restrictions of the President. The
Vice-Presidents shall also perform such other duties and have such other powers
as the Board of Directors, the Chief Executive Officer or these By-laws may,
from time to time, prescribe.
SECTION 12. SECRETARIES AND ASSISTANT SECRETARIES. The Secretary shall
attend all
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meetings of the Board of Directors, all meetings of the committees thereof and
all meetings of the stockholders and record all the proceedings of the meetings
in a book or books to be kept for that purpose. Under the President's
supervision, the Secretary shall give, or cause to be given, all notices
required to be given by these By-laws or by law; shall have such powers and
perform such duties as the Board of Directors, the Chief Executive Officer or
these By-laws may, from time to time, prescribe; and shall have custody of the
corporate seal of the Corporation. The Secretary, or an Assistant Secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested to by his signature or by the signature
of such Assistant Secretary. The Board of Directors may give general authority
to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature. The Assistant Secretary, or if there be more than
one, the Assistant Secretaries in the order determined by the Board of
Directors, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors, the Chief Executive
Officer or these By-laws may, from time to time, prescribe.
SECTION 13. TREASURER AND ASSISTANT TREASURER. The Treasurer shall have
the custody of the corporate funds and securities; shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation;
shall deposit all monies and other valuable effects in the name of and to the
credit of the Corporation as may be designated by the Board of Directors; shall
cause the funds of the Corporation to be disbursed when such disbursements have
been duly authorized, taking proper vouchers for such disbursements; and shall
render to the President and the Board of Directors, at its regular meeting or
when the Board of Directors so requires, an account of the Corporation; shall
have such powers and perform such duties as the Board of Directors, the Chief
Executive Officer or these By-laws may, from time to time, prescribe. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond (which shall be rendered every six years) in such sums and with such surety
or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of the office of Treasurer and for the restoration to
the Corporation, in case of death, resignation, retirement, or removal from
office, of all books, papers, vouchers, money, and other property of whatever
kind in the possession of or under the control of the Treasurer belonging to the
Corporation. The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors, shall in
the absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer. The Assistant Treasurers shall perform such other
duties and have such other powers as the Board of Directors, the Chief Executive
Officer or these By-laws may, from time to time, prescribe.
SECTION 14. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these By-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
SECTION 15. ABSENCE OR DISABILITY OF OFFICERS. In the case of the
absence or disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the Board of Directors may by resolution
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delegate the powers and duties of such officer to any other officer or to any
director, or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
SECTION 1. NATURE OF INDEMNITY. Each person who is or was or had agreed
to become a director or officer of the Corporation and each such person who is
or was serving or who had agreed to serve at the request of the Board of
Directors or an officer of the Corporation, as an employee or agent of the
Corporation or as a director, officer, employee or agent of another company,
partnership, joint venture, trust or other entity, whether for profit or not for
profit (including the heirs, executors, administrators or estate of such
person), will be indemnified by the Corporation to the full extent permitted by
the General Corporation Law of the State of Delaware or any other applicable law
as currently or hereafter in effect. The right of indemnification provided in
this Article V will not be exclusive of any other rights to which any person
seeking indemnification may otherwise be entitled, including without limitation
pursuant to any contract approved by a majority of the Board (whether or not the
directors approving such contract are or are to be parties to such contract or
similar contracts). Without limiting the generality or the effect of the
foregoing, the Corporation may adopt By-Laws, or enter into one or more
agreements with any person, which provide for indemnification greater or
different than that provided in this Article V or the General Corporation Law of
the State of Delaware. Any amendment or repeal of, or adoption of any provision
inconsistent with, this Article V will not adversely affect any right or
protection existing hereunder, or arising out of facts occurring, prior to such
amendment, repeal or adoption and no such amendment, repeal or adoption will
affect the legality, validity or enforceability of any contract entered into or
right granted prior to the effective date of such amendment, repeal or adoption.
SECTION 2. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any
indemnification of a director or officer of the Corporation under Section 1 of
this Article V or advance of expenses under Section 5 of this Article V shall be
made promptly, and in any event within 30 days, upon the written request of the
director or officer. If a determination by the Corporation that the director or
officer is entitled to indemnification pursuant to this Article V is required,
and the Corporation fails to respond within sixty days to a written request for
indemnity, the Corporation shall be deemed to have approved the request. If the
Corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within 30 days, the right to indemnification or advances as granted by
this Article V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it
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permissible under the General Corporation Law of the State of Delaware for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 3. ARTICLE NOT EXCLUSIVE. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise
SECTION 4. INSURANCE. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the Corporation or was
serving at the request of the Corporation as a director, officer, employee or
agent of another Corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such liability under this Article V.
SECTION 5. EXPENSES. Expenses incurred by any person described in
Section 1 of this Article V in defending a proceeding shall be paid by the
Corporation in advance of such proceeding's final disposition, unless otherwise
determined by the Board of Directors in the specific case, upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
SECTION 6. EMPLOYEES AND AGENTS. Persons who are not covered by the
foregoing provisions of this Article V and who are or were employees or agents
of the Corporation, or who are or were serving at the request of the Corporation
as employees or agents of another Corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the Board of Directors.
SECTION 7. CONTRACT RIGHTS. The provisions of this Article V shall be
deemed to be a contract right between the Corporation and each director or
officer who serves in any such capacity at any time while this Article V and the
relevant provisions of the General Corporation Law of the State of Delaware or
other applicable law are in effect, and any repeal or modification of this
Article V or any such law shall not affect any rights or obligations then
existing with respect to any state of facts or proceeding then existing.
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SECTION 8. MERGER OR CONSOLIDATION. For purposes of this Article V,
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 or agents, so that any person who is or was a
director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article V
with respect to the resulting or surviving Corporation as he or she would have
with respect to such constituent Corporation if its separate existence had
continued.
SECTION 9. OTHER TERMS DEFINED. For purposes of this Article V,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any 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 V.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. FORM. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by
the chairman, Vice-chairman, Chief Executive Officer, President or a
Vice-President and the Secretary or an assistant Secretary of the Corporation,
certifying the number of shares owned by such holder in the Corporation. If such
a certificate is countersigned (i) by a transfer agent or an assistant transfer
agent other than the Corporation or its employee or (ii) by a registrar, other
than the Corporation or its employee, the signature of any such chairman,
Vice-chairman, Chief Executive Officer, President, Vice-President, Secretary, or
assistant Secretary may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation whether because of death, resignation or otherwise before such
certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the Corporation. All certificates for shares shall
be consecutively numbered or otherwise identified. The name of the person to
whom the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the books of the Corporation. Shares of stock
of the Corporation shall only be transferred on the books of the Corporation by
the holder of record
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thereof or by such holder's attorney duly authorized in writing, upon surrender
to the Corporation of the certificate or certificates for such shares endorsed
by the appropriate person or persons, with such evidence of the authenticity of
such endorsement, transfer, authorization, and other matters as the Corporation
may reasonably require, and accompanied by all necessary stock transfer stamps.
In that event, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate or
certificates, and record the transaction on its books. The Board of Directors
may appoint a bank or trust company organized under the laws of the United
States or any state thereof to act as its transfer agent or registrar, or both
in connection with the transfer of any class or series of securities of the
Corporation.
SECTION 2. LOST CERTIFICATES. The Corporation may issue a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against the Corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
SECTION 3. REGISTERED STOCKHOLDERS. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. The Corporation 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.
SECTION 4. SUBSCRIPTIONS FOR STOCK. Unless otherwise provided for in
the subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such installments and at such times, as shall be determined by
the Board of Directors. Any call made by the Board of Directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the Corporation may proceed to collect the
amount due in the same manner as any debt due the Corporation.
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, pursuant to law. Dividends may be paid in cash, in
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property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
any other purpose and the directors may modify or abolish any such reserve in
the manner in which it was created.
SECTION 2. CHECKS, DRAFTS OR ORDERS. All checks, drafts, or other
orders for the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the Corporation, and in such
manner, as shall be determined by resolution of the Board of Directors or a duly
authorized committee thereof.
SECTION 3. CONTRACTS. The Board of Directors may authorize any officer
or officers, or any agent or agents, of the Corporation to enter into any
contract or to 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 4. LOANS. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiary, including any officer or employee who is a
director of the Corporation or its subsidiary, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with or
without interest, and may be unsecured, or secured in such manner as the Board
of Directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the Corporation at
common law or under any statute.
SECTION 5. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 6. CORPORATE SEAL. The Board of Directors may provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation 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 or otherwise.
SECTION 7. VOTING SECURITIES OWNED BY CORPORATION. Voting securities in
any other Corporation held by the Corporation shall be voted by the Chairman of
the Board, unless the Board of Directors specifically confers authority to vote
with respect thereto, which authority may be general or confined to specific
instances, upon some other person or officer. Any person authorized to vote
securities shall have the power to appoint proxies, with general power of
substitution.
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SECTION 8. SECTION HEADINGS. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
SECTION 9. INCONSISTENT PROVISIONS. In the event that any provision of
these by-laws is or becomes inconsistent with any provision of the Certificate
of Incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these by-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE VIII
AMENDMENTS
These by-laws may be amended, altered, or repealed and new by-laws
adopted at any meeting of the Board of Directors by a majority vote. The fact
that the power to adopt, amend, alter, or repeal the by-laws has been conferred
upon the Board of Directors shall not divest the stockholders of the same
powers.
[CONCLUSION OF BY-LAWS]
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