Exhibit
3.3
VR Acquisition Corp.
BY-LAWS
TABLE OF CONTENTS
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Article I. - General |
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1.1. Offices |
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1.2. Seal |
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1.3. Fiscal Year |
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Article II. - Stockholders |
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2.1. Place of Meetings |
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2.2. Annual Meeting |
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2.3. Quorum |
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2.4. Right to Vote; Proxies |
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2.5. Voting |
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2.6. Notice of Annual Meetings |
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2.7. Stockholders List |
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2.8. Special Meetings |
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2.9. Notice of Special Meetings |
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2.10. Inspectors |
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2.11. Stockholders Consent in Lieu of Meeting |
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Article III. - Directors |
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3.1. Number of Directors |
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3.2. Change in Number of Directors; Vacancies |
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3.3. Resignation |
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3.4. Removal |
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3.5. Place of Meetings and Books |
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3.6. General Powers |
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3.7. Executive Committee |
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3.8. Other Committees |
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3.9. Powers Denied to Committees |
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3.10. Substitute Committee Member |
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3.11. Compensation of Directors |
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3.12. Annual Meeting |
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3.13. Regular Meetings |
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3.14. Special Meetings |
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3.15. Quorum |
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3.16. Telephonic Participation in Meetings |
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3.17. Action by Consent |
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Article IV. - Officers |
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4.1. Selection; Statutory Officers |
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4.2. Time of Election |
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4.3. Additional Officers |
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4.4. Terms of Office |
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4.5. Compensation of Officers |
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4.6. Chairman of the Board |
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4.7. President |
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4.8. Vice-Presidents |
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4.9. Treasurer |
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4.10. Secretary |
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4.11. Assistant Secretary |
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4.12. Assistant Treasurer |
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4.13. Subordinate Officers |
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Article V. - Stock |
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5.1. Stock |
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5.2. Fractional Share Interests |
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5.3. Transfers of Stock |
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5.4. Record Date |
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5.5. Transfer Agent and Registrar |
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5.6. Dividends |
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5.7. Lost, Stolen or Destroyed Certificates |
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5.8. Inspection of Books |
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Article VI. - Miscellaneous Management Provisions |
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6.1. Checks, Drafts and Notes |
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6.2. Notices |
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6.3. Conflict of Interest |
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6.4. Voting of Securities owned by this Corporation |
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Article VII. - Indemnification |
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7.1. Right to Indemnification |
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7.2. Right of Indemnitee to Bring Suit |
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7.3. Non-Exclusivity of Rights |
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7.4. Insurance |
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7.5. Indemnification of Employees and Agents of the
Corporation |
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Article VIII. - Amendments |
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8.1. Amendments |
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VR Acquisition Corp.
BY-LAWS
Article I General
1.1. Offices. The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware. 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.
1.2. Seal. The seal of the Corporation shall be in the form of a circle and shall have
inscribed thereon the name of the Corporation, the year of its organization and the words
Corporate Seal, Delaware.
1.3. Fiscal Year. The fiscal year of the Corporation shall be the period from January
1 through December 31.
Article II Stockholders
2.1. Place of Meetings. All meetings of the stockholders shall be held at the office
of the Corporation in Rochester, NY except such meetings as the Board of Directors expressly
determine shall be held elsewhere, in which case meetings may be held upon notice as hereinafter
provided at such other place or places within or without the State of New York as the Board of
Directors shall have determined and as shall be stated in such notice.
2.2. Annual Meeting. The annual meeting of the stockholders shall be held in the
month of April each year on such date and at such time as the Board of Directors may determine. At
each annual meeting the stockholders entitled to vote shall elect a Board of Directors by
plurality vote by ballot, and they may transact such other corporate business as may properly be
brought before the meeting. At the annual meeting any business may be transacted, irrespective of
whether the notice calling such meeting shall have contained a reference thereto, except where
notice is required by law, the Certificate of Incorporation, or these by-laws.
2.3. Quorum. At all meetings of the stockholders the holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum requisite for the transaction of business except as otherwise
provided by law, by the Certificate of Incorporation or by these by-laws. If, however, such
majority shall not be present or represented at any meeting of the
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stockholders, the stockholders entitled to vote thereat, present in person or by proxy, by
a majority vote, shall have power to adjourn the meeting from time to time without notice other
than announcement at the meeting until the requisite amount of voting stock shall be present. 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. At such adjourned meeting, at which the
requisite amount of voting stock shall be represented, any business may be transacted which might
have been transacted if the meeting had been held as originally called.
2.4. Right to Vote; Proxies. Each holder of a share or shares of capital stock of the
Corporation having the right to vote at any meeting shall be entitled to one vote for each such
share of stock held by him. Any stockholder entitled to vote at any meeting of stockholders may
vote either in person or by proxy, but no proxy which is dated more than three years prior to the
meeting at which it is offered shall confer the right to vote thereat unless the proxy provides
that it shall be effective for a longer period. A proxy may be granted by a writing executed by
the stockholder or his authorized officer, director, employee or agent or by transmission or
authorization of transmission of a telegram, cablegram, or other means of electronic transmission
to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the holder of the
proxy to receive such transmission, subject to the conditions set forth in Section 212 of the
Delaware General Corporation Law, as it may be amended from time to time (the Delaware GCL).
2.5. Voting. At all meetings of stockholders, except as otherwise expressly provided
for by statute, the Certificate of Incorporation or these by-laws, (i) in all matters other than
the election of directors, the affirmative vote of a majority of shares present in person or
represented by proxy at the meeting and entitled to vote on such matter shall be the act of the
stockholders and (ii) directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on the election of
directors. Except as otherwise expressly provided by law, the Certificate of Incorporation or
these by-laws, at all meetings of stockholders the voting shall be by voice vote, but any
stockholder qualified to vote on the matter in question may demand a stock vote, by shares of
stock, upon such question, whereupon such stock vote shall be taken by ballot, each of which
shall state the name of the stockholder voting and the number of shares voted by him,
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and, if such ballot be cast by a proxy, it shall also state the name of the proxy.
2.6. Notice of Annual Meetings. Written notice of the annual meeting of the
stockholders shall be mailed to each stockholder entitled to vote thereat at such address as
appears on the stock books of the Corporation at least ten (10) days (and not more than sixty (60)
days) prior to the meeting. It shall be the duty of every stockholder to furnish to the Secretary
of the Corporation or to the transfer agent, if any, of the class of stock owned by him, his
post-office address and to notify said Secretary or transfer agent of any change therein.
2.7. Stockholders List. A complete list of the stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order and showing the address of each
stockholder, and the number of shares registered in the name of each stockholder, shall be prepared
by the Secretary and filed 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, at least ten days before such meeting, and shall at all times during the
usual hours for business, and during the whole time of said election, be open to the examination of
any stockholder for a purpose germane to the meeting.
2.8. Special Meetings. Special meetings of the stockholders for any purpose or
purposes, unless otherwise provided by statute, may be called by the Board of Directors, the
Chairman of the Board, if any, the President or any Vice President.
2.9. Notice of Special Meetings. Written notice of a special meeting of stockholders,
stating the time and place and object thereof shall be mailed, postage prepaid, not less than ten
(10) nor more than sixty (60) days before such meeting, to each stockholder entitled to vote
thereat, at such address as appears on the books of the Corporation. No business may be transacted
at such meeting except that referred to in said notice, or in a supplemental notice given also in
compliance with the provisions hereof, or such other business as may be germane or supplementary
to that stated in said notice or notices.
2.10. Inspectors.
1 One or more inspectors may be appointed by the Board of Directors before or at
any meeting of stockholders, or, if no such appointment shall have been made, the
presiding officer may make such appointment at the meeting. At the meeting for
which the inspector or inspectors are appointed, he or they shall open and close
the polls, receive and take charge of the proxies and ballots, and decide all
questions touching on the qualifications of voters, the validity of proxies and the
acceptance and rejection of votes. If any inspector previously appointed shall fail
to attend or refuse or be
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unable to serve, the presiding officer shall appoint an
inspector in his place.
2 At any time at which the Corporation has a class of voting stock that is: (i)
listed on a national securities exchange, (ii) authorized for quotation on an
inter-dealer quotation system of a registered national securities association, or
(iii) held of record by more than 2,000 stockholders, the provisions of Section
231 of the Delaware GCL with respect to inspectors of election and voting
procedures shall apply, in lieu of the provisions of paragraph (1) of this §2.10.
2.11. Stockholders Consent in Lieu of Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action required by law 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, 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, 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 Corporations registered office shall be by hand
or by certified or registered mail, return receipt requested. Every written consent shall bear the
date of signature of each stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this §2.11 to the Corporation, written
consents signed by a sufficient number of stockholders to take action are 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 Corporations
registered office shall be by hand or by certified or registered mail, return receipt requested.
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.
Article Ill Directors
3.1. Number of Directors. Except as otherwise provided by law, the Certificate of
Incorporation or these by-laws, the property and business
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of the Corporation shall be managed by
or under the direction of a board of not less than one nor more than thirteen directors. Within
the limits specified, the number of directors shall be determined by resolution of the Board of
Directors or by the stockholders at the annual meeting. Directors need not be stockholders,
residents of Delaware or citizens of the United States. The directors shall be elected by ballot
at the annual meeting of the stockholders and each director shall be elected to serve until his
successor shall be elected and shall qualify or until his earlier resignation or removal; provided
that in the event of failure to hold such meeting or to hold such election at such meeting, such
election may be held at any special meeting of the stockholders called for that purpose. If the
office of any director becomes vacant by reason of death, resignation, disqualification, removal,
failure to elect, or otherwise, the remaining directors, although more or less than a quorum, by a
majority vote of such remaining directors may elect a successor or successors who shall hold
office for the unexpired term.
3.2. Change in Number of Directors; Vacancies. The maximum number of directors may be
increased by an amendment to these by-laws adopted by a majority vote of the Board of Directors or
by a majority vote of the capital stock having voting power, and if the number of directors is so
increased by action of the Board of Directors or of the stockholders or otherwise, then the
additional directors may be elected in the manner provided above for the filling of vacancies in
the Board of Directors or at the annual meeting of stockholders or at a special meeting called for
that purpose.
3.3. Resignation. Any director of this Corporation may resign at any time by giving
written notice to the Chairman of the Board, if any, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein, at the time of
receipt if no time is specified therein and at the time of acceptance if the effectiveness of such
resignation is conditioned upon its acceptance. Unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
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3.4. Removal. Any
director or the entire Board of Directors may be removed, with or without cause, by the holders of
a majority of the shares then entitled to vote at an election of directors.
3.5. Place of Meetings and Books. The Board of Directors may hold their meetings and
keep the books of the Corporation outside the State of Delaware, at such places as they may from
time to time determine.
3.6. General Powers. In addition to the powers and authority expressly conferred upon
them by these by-laws, the board may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of Incorporation or by these
bylaws directed or required to be exercised or done by the stockholders.
3.7. Executive Committee. There may be an executive committee of one or more
directors designated by resolution passed by a majority of the whole board. The act of a majority
of the members of such committee shall be the act of the committee. Said committee may meet at
stated times or on notice to all by any of their own number, and shall have and may exercise those
powers of the Board of Directors in the management of the business affairs of the Company as are
provided by law and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Vacancies in the membership of the committee shall be filled by the Board of
Directors at a regular meeting or at a special meeting called for that purpose.
3.8. Other Committees. The Board of Directors may also designate one or more
committees in addition to the executive committee, by resolution or resolutions passed by a
majority of the whole board; such committee or committees shall consist of one or more directors
of the Corporation, and to the extent provided in the resolution or resolutions designating them,
shall have and may exercise specific powers of the Board of Directors in the management of the
business and affairs of the Corporation to the extent permitted by statute and shall have power to
authorize the seal of the Corporation to be affixed to all papers which may require it. 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.
3.9. Powers Denied to Committees. Committees of the Board of Directors shall not, in any
event, have any power or authority to amend the Certificate of Incorporation (except that a
committee may, to the
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extent authorized in the resolution or resolutions providing for the
issuance of shares adopted by the Board of Directors as provided in Section 151(a) of the Delaware
GCL, fix the designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other class or classes or any
other series of the same or any other class or classes of stock of the Corporation or fix the
number of shares of any series of stock or authorize the increase or decrease of the shares of any
series), adopt an agreement of merger or consolidation, recommend to the stockholders the sale,
lease or exchange of all or substantially all of the Corporations property and assets, recommend
to the stockholders a dissolution of the Corporation or a revocation of a dissolution or to amend
the by-laws of the Corporation. Further, no committee of the Board of Directors shall have the
power or authority to declare a dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware GCL, unless the
resolution or resolutions designating such committee expressly so provides.
3.10. Substitute Committee Member. In the absence or on the disqualification of a
member of a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of such absent or disqualified
member. Any committee shall keep regular minutes of its proceedings and report the same to the
board as may be required by the board.
3.11. Compensation of Directors. The Board of Directors shall have the power to fix
the compensation of directors and members of committees of the Board. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director.
No such payment shall preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.12. Annual Meeting. The newly elected board may meet at such place and time as
shall be fixed and announced by the presiding officer at the annual meeting of stockholders, for
the purpose of organization or otherwise, and no further notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present, or they may meet at such place and time as shall be stated in a notice
given to such directors two (2) days prior to such meeting, or as shall be fixed by the consent
in writing of all the directors.
3.13. Regular Meetings. Regular meetings of the board may be held without notice at
such time and place as shall from time to time be determined
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by the board.
3.14. Special Meetings. Special meetings of the board may be called by the Chairman of
the Board, if any, or the President, on two (2) days notice to each director, or such shorter
period of time before the meeting as will nonetheless be sufficient for the convenient assembly of
the directors so notified; special meetings shall be called by the Secretary in like manner and on
like notice, on the written request of two or more directors.
3.15. Quorum. At all meetings of the Board of Directors, a majority of the total
number of directors shall be necessary and sufficient to constitute a quorum for the transaction
of business, and the act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise specifically
permitted or provided by statute, or by the Certificate of Incorporation, or by these by-laws. If
at any meeting of the board there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained, and no further notice
thereof need be given other than by announcement at said meeting which shall be so adjourned.
3.16. Telephonic Participation in Meetings. Members of the Board of Directors or any
committee designated by such board may participate in a 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 participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
3.17. Action by Consent. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting, if written consent
thereto is signed by all members of the board or of such committee as the case may be and such
written consent is filed with the minutes of proceedings of the board or committee.
Article IV Officers
4.1. Selection; Statutory Officers. The officers of the Corporation shall be chosen by
the Board of Directors. There shall be a President, a Secretary and a Treasurer, and there may be a
Chairman of the Board of Directors, one or more Vice Presidents, one or more Assistant Secretaries,
and one or more Assistant Treasurers, as the Board of Directors may elect. Any number of offices
may be held by the same person, except that the offices of
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President and Secretary shall not be
held by the same person simultaneously.
4.2. Time of Election. The officers above named shall be chosen by the Board of
Directors at its first meeting after each annual meeting of stockholders. None of said officers
need be a director.
4.3. Additional Officers. The board may appoint such other officers and agents as it
shall deem necessary, who shall hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by the board.
4.4. Terms of Office. Each officer of the Corporation shall hold office until his
successor is chosen and qualified, or until his earlier resignation or removal. Any officer
elected or appointed by the Board of Directors may be removed at any time by the Board of
Directors.
4.5. Compensation of Officers. The Board of Directors shall have power to fix the
compensation of all officers of the Corporation. It may authorize any officer, upon whom the power
of appointing subordinate officers may have been conferred, to fix the compensation of such
subordinate officers.
4.6. Chairman of the Board. The Chairman of the Board of Directors shall preside at
all meetings of the stockholders and directors, and shall have such other duties as may be
assigned to him from time to time by the Board of Directors.
4.7. President. Unless the Board of Directors otherwise determines, the President
shall be the chief executive officer and head of the Corporation. Unless there is a Chairman of
the Board, the President shall preside at all meetings of directors and stockholders. Under the
supervision of the Board of Directors and of the executive committee, the President shall have the
general control and management of its business and affairs, subject, however, to the right of the
Board of Directors and of the executive committee to confer any specific power, except such as may
be by statute exclusively conferred on the President, upon any other officer or officers of the
Corporation. The President shall perform and do all acts and things incident to the position of
President and such other duties as may be assigned to him from time to time by the Board of
Directors or the executive committee.
4.8. Vice-Presidents. The Vice-Presidents shall perform such of the duties of the
President on behalf of the Corporation as may be respectively assigned to them from time to time by
the Board of Directors or by the executive committee or by the President. The Board of Directors or
the executive committee may designate one of the Vice-Presidents as the Executive Vice-President,
and in the absence or inability of the President to act, such Executive Vice-President shall have
and possess all of the powers and discharge all of the duties of the President, subject to the
control of the board and of the executive committee.
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4.9. Treasurer. The Treasurer shall have the care and custody of all the funds and
securities of the Corporation which may come into his hands as Treasurer, and the power and
authority to endorse checks, drafts and other instruments for the payment of money for deposit or
collection when necessary or proper and to deposit the same to the credit of the Corporation in
such bank or banks or depository as the Board of Directors or the executive committee, or the
officers or agents to whom the Board of Directors or the executive committee may delegate such
authority, may designate, and he may endorse all commercial documents requiring endorsements for or
on behalf of the Corporation. He may sign all receipts and vouchers for the payments made to the
Corporation. He shall render an account of his transactions to the Board of Directors or to the
executive committee as often as the board or the committee shall require the same. He shall enter
regularly in the books to be kept by him for that purpose full and adequate account of all moneys
received and paid by him on account of the Corporation. He shall perform all acts incident to the
position of Treasurer, subject to the control of the Board of Directors and of the executive
committee. He shall when requested, pursuant to vote of the Board of Directors or the executive
committee, give a bond to the Corporation conditioned for the faithful performance of his duties,
the expense of which bond shall be borne by the Corporation.
4.10. Secretary. The Secretary shall keep the minutes of all meetings of the Board of
Directors and of the stockholders; he shall attend to the giving and serving of all notices of the
Corporation. Except as otherwise ordered by the Board of Directors or the executive committee, he
shall attest the seal of the Corporation upon all contracts and instruments executed under such
seal and shall affix the seal of the Corporation thereto and to all certificates of shares of
capital stock of the Corporation. He shall have charge of the stock certificate book, transfer
book and stock ledger, and such other books and papers as the Board of Directors or the executive
committee may direct. He shall, in general, perform all the duties of Secretary, subject to the
control of the Board of Directors and of the executive committee.
4.11. Assistant Secretary. The Board of Directors or any two of the officers of the
Corporation acting jointly may appoint or remove one or more Assistant Secretaries of the
Corporation. Any Assistant Secretary upon his appointment shall perform such duties of the
Secretary, and also any and all such other duties as the executive committee or the Board of
Directors or the President or the Executive Vice-President or the Treasurer or the Secretary may
designate.
4.12. Assistant Treasurer. The Board of Directors or any two of the officers of the
Corporation acting jointly may appoint or remove one or more Assistant Treasurers of the
Corporation. Any Assistant Treasurer upon his appointment shall perform such of the duties of the
Treasurer, and also any and all such other duties as the executive committee or the Board of
Directors or the President or the Executive Vice-President or the Treasurer or the Secretary may
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designate.
4.13. Subordinate Officers. The Board of Directors may select such subordinate
officers as it may deem desirable. Each such officer shall hold office for such period, have such
authority, and perform such duties as the Board of Directors may prescribe. The Board of Directors
may, from time to time, authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
Article V Stock
5.1. Stock. Each stockholder shall be entitled to a certificate or certificates of
stock of the Corporation in such form as the Board of Directors may from time to time prescribe.
The certificates of stock of the Corporation shall be numbered and shall be entered in the books
of the Corporation as they are issued. They shall certify the holders name and number and class
of shares and shall be signed by both of (i) either the President or a Vice-President, and (ii)
any one of the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
and shall be sealed with the corporate seal of the Corporation. If such certificate is
countersigned (1) by a transfer agent other than the Corporation or its employee, or, (2) by a
registrar other than the Corporation or its employee, the signature of the officers of the
Corporation and the corporate seal may be facsimiles. In case any officer or officers who shall
have signed, or whose facsimile signature or signatures shall 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 shall
have been delivered by the Corporation, such certificate or certificates may nevertheless be
adopted by the Corporation and be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature shall have been used thereon had
not ceased to be such officer or officers of the Corporation.
5.2. Fractional Share Interests. The Corporation may, but shall not be required to,
issue fractions of a share. If the Corporation does not issue fractions of a share, it shall (i)
arrange for the disposition of fractional interests by those entitled thereto, (ii) pay in cash
the fair value of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (iii) issue scrip or warrants in registered or bearer form which
shall entitle the holder to receive a certificate for a full share upon the surrender of such
scrip or warrants aggregating a full share. A certificate for a fractional share shall, but scrip
or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting
rights, to receive dividends thereon, and to participate in any of the assets of the Corporation
in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for certificates
representing full shares before a specified
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date, or subject to the conditions that the shares
for which scrip or warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any other conditions which
the Board of Directors may impose.
5.3. Transfers of Stock. Subject to any transfer restrictions then in force, the
shares of stock of the Corporation shall be transferable only upon its books by the holders
thereof in person or by their duly authorized attorneys or legal representatives and upon such
transfer the old certificates shall be surrendered to the Corporation by the delivery thereof to
the person in charge of the stock and transfer books and ledgers or to such other person as the
directors may designate by whom they shall be cancelled and new certificates shall thereupon be
issued. The Corporation shall be entitled to treat the holder of record of any share or shares of
stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable
or other claim to or interest in such share on the part of any other person whether or not it
shall have express or other notice thereof save as expressly provided by the laws of Delaware.
5.4. Record Date. For the purpose of determining the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or the allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion, or exchange of stock or for the purpose of any other lawful action, the
Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60)
days nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. If no such 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; the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed; and the record date
for determining stockholders for any other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at any 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.
5.5. Transfer Agent and Registrar. The Board of Directors may appoint one or more
transfer agents or transfer clerks and one or more registrars and may require all certificates of
stock to bear the signature or signatures of any of them.
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5.6. Dividends.
1. Power to Declare. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant to
law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation and the laws
of Delaware.
2. Reserves. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the Corporation,
and the directors may modify or abolish any such reserve in the manner in which it
was created.
5.7. Lost, Stolen or Destroyed Certificates. No certificates for shares of stock of
the Corporation shall be issued in place of any certificate alleged to have been lost, stolen or
destroyed, except upon production of such evidence of the loss, theft or destruction and upon
indemnification of the Corporation and its agents to such extent and in such manner as the Board
of Directors may from time to time prescribe.
5.8. Inspection of Books. The stockholders of the Corporation, by a majority vote at
any meeting of stockholders duly called, or in case the stockholders shall fail to act, the Board
of Directors shall have power from time to time to determine whether and to what extent and at
what times and places and under what conditions and regulations the accounts and books of the
Corporation (other than the stock ledger) or any of them, shall be open to inspection of
stockholders; and no stockholder shall have any right to inspect any account or book or document
of the Corporation except as conferred by statute or authorized by the Board of Directors or by a
resolution of the stockholders.
Article VI Miscellaneous Management Provisions
6.1. Checks, Drafts and Notes. All checks, drafts or orders for the payment of
money, and all notes and acceptances of the Corporation shall be signed by such officer or
officers, agent or agents as the Board of Directors may designate.
6.2. Notices.
1. Notices to directors may, and notices to stockholders shall, be in writing and
delivered personally or mailed to the directors or
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stockholders at their addresses
appearing on the books of the Corporation. Notice by mail shall be deemed to be given at
the time when the same shall be mailed. Notice to directors may also be given by telegram,
telecopy or orally, by telephone or in person.
2. Whenever any notice is required to be given under the provisions of the statutes
or of the Certificate of Incorporation of the Corporation of the Corporation or of these
by-laws, a written waiver of notice, signed by the person or persons entitled to said
notice, whether before or after the time stated therein or the meeting or action to which
such notice relates, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting except when the person attends
a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened.
6.3. Conflict of Interest. 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 or committee thereof which authorized the contract or transaction, or solely because
his or their votes are counted for such purpose, if: (i) 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 vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his relationship
or interest and as to the contract or transaction are disclosed or are known to the stockholders
of the Corporation entitled to vote thereon, and the contract or transaction as specifically
approved in good faith by vote of such stockholders; or (iii) the contract or transaction is fair
as to the Corporation as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee 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.
6.4. Voting of Securities owned by this Corporation. Subject always to the specific
directions of the Board of Directors, (i) any shares or other securities issued by any other
Corporation and owned or controlled by this Corporation may be voted in person at any meeting of
security holders of such other corporation by the President of this Corporation if he
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is
present at such meeting, or in his absence by the Treasurer of this Corporation if he is present at
such meeting, and (ii) whenever, in the judgment of the President, it is desirable for this
Corporation to execute a proxy or written consent in respect to any shares or other securities
issued by any other Corporation and owned by this Corporation, such proxy or consent shall be
executed in the name of this Corporation by the President, without the necessity of any
authorization by the Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer, provided that if the President is unable to execute such proxy or
consent by reason of sickness, absence from the United States or other similar cause, the Treasurer
may execute such proxy or consent. Any person or persons designated in the manner above stated as
the proxy or proxies of this Corporation shall have full right, power and authority to vote the
shares or other securities issued by such other corporation and owned by this Corporation the same
as such shares or other securities might be voted by this Corporation.
Article VII Indemnification
7.1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a Proceeding), by reason of being or
having been a director or officer of the Corporation or serving or having served at the request of
the Corporation as a director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (an Indemnitee), whether the basis of such proceeding is alleged action or
failure to act in an official capacity as a director, trustee, officer, employee or agent or in
any other capacity while serving as a director, trustee, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto) (as used in this Article 7, the Delaware
Law), against all expense, liability and loss (including attorneys fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith and such indemnification shall continue as to an Indemnitee who
has ceased to be a director, trustee, officer, employee or agent and shall inure to the benefit of
the Indemnitees heirs, executors and administrators; provided, however, that, except as provided
in §7.2 hereof with respect to Proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such Indemnitee in connection with a Proceeding (or part thereof) initiated by
such Indemnitee only if such Proceeding (or part thereof) was authorized by the board of directors
of the Corporation. The right to indemnification conferred in this Article 7 shall be a contract
right and shall include the right to be paid by the Corporation the expenses (including attorneys
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fees) incurred in defending any such Proceeding in advance of its final disposition (an
Advancement of Expenses); provided, however, that, if the Delaware Law so requires, an
Advancement of Expenses incurred by an Indemnitee shall be made only upon delivery to the
Corporation of an undertaking (an Undertaking), by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial decision from which
there is no further right to appeal (a Final Adjudication) that such Indemnitee is not entitled
to be indemnified for such expenses under this Article 7 or otherwise.
7.2. Right of Indemnitee to Bring Suit. If a claim under §7.1 hereof is not paid in full
by the Corporation within sixty days after a written claim has been received by the Corporation,
except in the case of a claim for an Advancement of Expenses, in which case the applicable period
shall be twenty days, the Indemnitee may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms
of an Undertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an
Advancement of Expenses) it shall be a defense that, and (ii) in any suit by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an Undertaking the Corporation shall
be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not met
the applicable standard of conduct set forth in the Delaware Law. 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 suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard
of conduct set forth in the Delaware Law, nor an actual determination by the Corporation
(including its board of directors, independent legal counsel, or its stockholders) that the
Indemnitee has not met such applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought
by the Indemnitee, be a defense to such suit. In any suit brought by the
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Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder, or by the
Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the
burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of
Expenses, under this Article 7 or otherwise shall be on the Corporation.
7.3. Non-Exclusivity of Rights. The rights to indemnification and to the Advancement
of Expenses conferred in this Article 7 shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporations Certificate or Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or otherwise.
7.4. Insurance. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under this Article 7 or under the Delaware Law.
7.5. Indemnification of Employees and Agents of the Corporation. The Corporation
may, to the extent authorized from time to time by the board of directors, grant rights to
indemnification, and to the Advancement of Expenses, to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article 7 with respect to the indemnification and
Advancement of Expenses of directors and officers of the Corporation.
Article VIII Amendments
8.1. Amendments. The by-laws of the Corporation may be altered, amended or repealed
at any meeting of the Board of Directors upon notice thereof in accordance with these by-laws, or
at any meeting of the stockholders by the vote of the holders of the majority of the stock issued
and outstanding and entitled to vote at such meeting, in accordance with the provisions of the
Certificate of Incorporation of the Corporation and of the laws of Delaware.