Exhibit 3.3
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QFAC, LLC
(a Delaware Limited Liability Company)
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By-Laws
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Adopted as of June 28, 1999
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BY-LAWS
OF
QFAC, LLC
Introduction
A. Agreement. These By-laws (the "By-laws") are subject to the
Operating Agreement dated as of June 28, 1999, as the same may from time to time
be amended and in effect (the "Operating Agreement"), of QFAC, LLC, a Delaware
limited liability company (the "Company"). In the event of any inconsistency
between the terms hereof and the terms of the Operating Agreement, the terms of
the Operating Agreement shall control.
B. Definitions. Capitalized terms used and not defined in these By-laws
have the meanings ascribed to them in the Operating Agreement.
ARTICLE I
MEETINGS OF MEMBERS
1.1 Place of Meetings and Meetings by Telephone.
Meetings of Members shall be held at any place designated by the Board
of Managers. In the absence of any such designation, meetings of Members shall
be held at the principal place of business of the Company. Any meeting of the
Members may be held by conference telephone or similar communication equipment
so long as all Members participating in the meeting can hear one another, and
all Members participating by telephone or similar communication equipment shall
be deemed to be present in person at the meeting.
1.2 Call of Meetings.
Meetings of Members may be called at any time by the Board of Managers
or the President for the purpose of taking action upon any matter requiring the
vote or authority of the Members as provided herein or in the Operating
Agreement or upon any other matter as to which such vote or authority is deemed
by the Board of Managers or the President to be necessary or desirable.
1.3 Notice of Meetings of Members.
All notices of meetings of Members shall be sent or otherwise given in
accordance with Section 4 of this Article I not less then ten nor more than
sixty days before the date of the meeting. The notice shall specify the place,
date and hour of the meeting.
1.4 Manner of Giving Notice.
Notice of any meeting of Members shall be given personally or by
telephone to each Member or sent by first class mail, postage prepaid, by
telegram or telecopy (or similar
electronic means) or by a nationally recognized overnight courier, charges
prepaid, addressed to the Member at the address of that Member appearing on the
books of the Company or given by the Member to the Company for the purpose of
notice. Notice shall be deemed to have been given at the time when delivered
either personally or by telephone, or at the time when deposited in the mail or
with a nationally recognized overnight courier, or when sent by telegram or
telecopy (or similar electronic means).
1.5 Adjourned Meeting; Notice.
Any meeting of Members, whether or not a quorum is present, may be
adjourned from time to time by the vote of a Majority in Interest of Members
represented at that meeting, either in person or by proxy. When any meeting of
Members is adjourned to another time or place, notice need not be given of the
adjourned meeting, unless a new record date of the adjourned meeting is fixed or
unless the adjournment is for more than thirty days from the date set for the
original meeting, in which case the Board of Managers shall set a new record
date and shall give notice in accordance with the provisions of Sections 3 and 4
of this Article I. At any adjourned meeting, the Company may transact any
business that might have been transacted at the original meeting.
1.6 Quorum; Voting.
At any meeting of the Members, the presence of a Majority in Interest
of Members, in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of Members holding such other
percentage of LLC Interests is required by the Operating Agreement, these
By-laws or applicable law. Except as otherwise required by the Operating
Agreement, these By-laws or applicable law, all matters shall be determined by
an affirmative vote of a Majority in Interest of Members.
1.7 Waiver of Notice by Consent of Absent Members.
The transactions of a meeting of Members, however called and noticed
and wherever held, shall be as valid as though taken at a meeting duly held
after regular call and notice if a quorum is present either in person or by
proxy and if either before or after the meeting, each person entitled to vote
who was not present in person or by proxy signs a written waiver of notice or a
consent to a holding of the meeting or an approval of the minutes. The waiver of
notice or consent need not specify either the business to be transacted or the
purpose of any meeting of Members. Attendance by a person at a meeting shall
also constitute a waiver of notice of that meeting, except when the person
objects at the beginning of the meeting to the transaction of any business
because the meeting was not lawfully called or convened.
1.8 Member Action by Written Consent Without a Meeting.
Any action that may be taken at any meeting of Members may be taken
without a meeting and without prior notice if a consent in writing setting forth
the action so taken is signed by a Majority in Interest of Members (or Members
holding such other percentage of LLC Interests as is required to authorize or
take such action under the terms of the Operating Agreement, these By-laws or
applicable law). Any such written consent may be executed and
given by telecopy or similar electronic means. Such consents shall be filed with
the Secretary of the Company and shall be maintained in the Company's records.
1.9 Record Date for Member Notice, Voting and Giving Consents.
(a) For purposes of determining the Members entitled to vote or act at
any meeting or adjournment thereof, the Board of Managers may fix in advance a
record date which shall not be greater than sixty days nor fewer than ten days
before the date of any such meeting. If the Board of Managers does not so fix a
record date, the record date for determining Members entitled to notice of or to
vote at a meeting of Members shall be at the close of business on the business
day immediately preceding the day on which notice is given, or if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held.
(b) The record date for determining the Members entitled to give
consent to action in writing without a meeting, (i) when no prior action of the
Board of Managers has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the Board of Managers has been
taken, shall be such date as determined for that purpose by the Board of
Managers, which record date shall not precede the date upon which the resolution
fixing it is adopted by the Board of Managers and shall not be more than twenty
days after the date of such resolution.
(c) Only Members of record on the record date as herein determined
shall have any right to vote or to act at any meeting or give consent to any
action relating to such record date, provided that no Member who transfers all
or part of such Member's LLC Interest after a record date (and no transferee of
such LLC Interest) shall have the right to vote or act with respect to the
transferred LLC Interest as regards the matter for which the record date was
set.
1.10 Proxies.
Every Member entitled to vote or act on any matter at a meeting of
Members shall have the right to do so either in person or by proxy, provided
that an instrument authorizing such a proxy to act is executed by the Member in
writing and dated not more than eleven months before the meeting, unless the
instrument specifically provides for a longer period. A proxy shall be deemed
executed by a Member if the Member's name is placed on the proxy (whether by
manual signature, typewriting, telegraphic transmission or otherwise) by the
Member or the Member's attorney-in-fact. A valid proxy that does not state that
it is irrevocable shall continue in full force and effect unless (i) revoked by
(a) the person executing it before the vote pursuant to that proxy by a writing
delivered to the Company stating that the proxy is revoked or (b) a subsequent
proxy executed by, or by attendance at the meeting and voting in person by, the
person executing that proxy or (ii) written notice of the death or incapacity of
the maker of that proxy is received by the Company before the vote pursuant to
that proxy is counted. A proxy purporting to be executed by or on behalf of a
Member shall be deemed valid unless challenged at or prior to its exercise and
the burden of proving invalidity shall rest on the challenger. Except to the
extent inconsistent with the provisions hereof, the General Corporation Law of
the State of Delaware, and judicial construction thereof by the Courts of the
State of Delaware, shall be applicable to proxies granted by any Member.
ARTICLE II
MANAGERS AND MEETINGS OF MANAGERS
2.1 Powers.
The powers of the Managers shall be as provided herein and in the
Operating Agreement.
2.2 Number of Managers.
The Board of Managers shall consist of one or more Managers. The number
of Managers shall initially be six and may thereafter be changed from time to
time by action of the Managers or the Members.
2.3 Vacancies.
Newly created vacancies on the Board of Managers resulting from an
increase in the number of Managers and vacancies occurring on the Board of
Managers for any other reason, including the removal of Managers with or without
cause, may be filled by vote of the Members or by the Members' written consent
or by vote of the Managers or by written consent of the Managers .
2.4 Place of Meetings and Meetings by Telephone.
All meetings of the Board of Managers may be held at any place that has
been designated from time to time by resolution of the Board of Managers or in
any notice properly given with respect to any such meeting. In the absence of
such a designation, regular meetings shall be held at the principal place of
business of the Company. Any meeting, regular or special, may be held by
conference telephone or similar communication equipment so long as all Managers
participating in the meeting can hear one another, and all Managers
participating by telephone or similar communication equipment shall be deemed to
be present in person at the meeting.
2.5 Regular Meetings.
Regular meetings of the Board of Managers shall be held at such times
and at such places as shall be fixed by approval of the Managers. Such regular
meetings may be held without notice.
2.6 Special Meetings.
Special meetings of the Board of Managers for any purpose or purposes
may be called at any time by any Manager. Notice of the time and place of a
special meeting shall be delivered to each Manager (a) personally, (b) by
telephone (and confirmed by one of the methods set out in the immediately
succeeding clause (c)), or (c) by telegram, telecopy (or similar electronic
means), first-class mail or nationally recognized overnight courier, charges
prepaid, addressed to each Manager at that Manager's address as it is shown on
the records of the Company. If the notice is mailed, it shall be deposited in
the United States mail at least two calendar days before the time of the holding
of the meeting. If the notice is delivered personally or by telephone or by
telegram, telecopy (or similar electronic means) or by national recognized
overnight courier, it shall be given at least twenty-four hours before the time
of the holding of the meeting. Any oral notice given personally or by telephone
may be communicated either to the Manager or to a person at the office of the
Manager who the person giving the notice has reason to believe will promptly
communicate it to the Manager. The notice need not specify the purpose of the
meeting.
2.7 Quorum; Chairman.
A majority of the authorized number of Managers shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
9 of this Article II. Every act or decision done or made by the affirmative vote
of Managers entitled to cast votes at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Managers, except to the
extent that the vote of a higher number of Managers is required by the Operating
Agreement, these By-laws or applicable law. The Board of Managers may from time
to time appoint any Manager to serve as Chairman of the Board of Managers, who
shall preside at all meetings of the Board of Managers and of the Members. If at
the time of any such meeting, there shall not be a Chairman of the Board of
Managers, or the then incumbent Chairman does not attend or participate in such
meeting, then the Board of Managers shall appoint a person to preside at such
meeting.
2.8 Waiver of Notice.
Notice of any meeting need not be given to any Manager who either
before or after the meeting signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes. The waiver of notice or
consent need not specify the purpose of the meeting. All such waivers, consents,
and approvals shall be filed with the records of the Company or made a part of
the minutes of the meeting. Notice of a meeting shall also be deemed given to
any Manager who attends the meeting without protesting, at or prior to its
commencement, the lack of notice to that Manager.
2.9 Adjournment.
Managers present at any meeting entitled to cast a majority of all
votes entitled to be cast by such Managers, whether or not constituting a
quorum, may adjourn any meeting to another time and place. Notice of the time
and place of holding an adjourned meeting need not be given unless the meeting
is adjourned for more than forty-eight hours, in which case notice of the time
and place shall be given before the time of the adjourned meeting in the manner
specified in Section 6 of this Article II.
2.10 Action Without a Meeting.
Any action to be taken by the Board of Managers at a meeting may be
taken without such meeting by the written consent of all the Managers then in
office. Any such written consent may be executed and given by telecopy or
similar electronic means. Such written consents shall be filed with the minutes
of the proceedings of the Board of Managers.
2.11 Delegation of Power.
Any Manager may, by power of attorney, delegate his power to any other
Manager or Managers; provided, however, that in no case shall fewer than two
Managers personally exercise the powers granted to the Managers, except as
otherwise provided in the Operating Agreement, these By-laws or by resolution of
the Board of Managers. A Manager represented by another Manager pursuant to such
power of attorney shall be deemed to be present for purposes of establishing a
quorum and satisfying any voting requirements. The Board of Managers may, by
resolution, delegate any or all of their powers and duties granted hereunder or
under the Operating Agreement to one or more committees of the Board of
Managers, each consisting of one or more Managers, or to one or more officers,
employees or agents (including, without limitation, Members), and to the extent
any such powers or duties are so delegated, action by the delegate or delegates
shall be deemed for all purposes to be action by the Board of Managers. Except
as otherwise provided in the Operating Agreement, all such delegates shall serve
at the pleasure of the Board of Managers. To the extent applicable, notice shall
be given to, and action may be taken by, any delegate of the Board of Managers
as herein provided with respect to notice to, and action by, the Board of
Managers.
ARTICLE III
OFFICERS
3.1 Officers.
The officers of the Company shall be a President, a Secretary and a
Treasurer. The Company may also have, at the discretion of the Board of
Managers, such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article III. Any number of offices may be held
by the same person. Officers may, but need not, be Managers.
3.2 Election of Officers.
The officers of the Company shall be chosen by the Board of Managers,
and each shall serve at the pleasure of the Board of Managers, subject to the
rights, if any, of an officer under any contract of employment.
3.3 Additional Officers.
The Board of Managers may appoint and may empower the President to
appoint such additional officers as the business of the Company may require,
each of whom shall hold office for such period, have such authority and perform
such duties as are provided in these By-laws or as the Board of Managers (or, to
the extent the power to prescribe authorities and duties of additional officers
is delegated to him or her, the President) may from time to time determine.
3.4 Removal and Resignation of Officers.
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, with or without cause, by the Board of
Managers at any regular or special meeting of the Board of Managers or by such
officer, if any, upon whom such power of removal
may be conferred by the Board of Managers. Any officer may resign at any time by
giving written notice to the Company. Any resignation shall take effect at the
date of the receipt of that notice or at any later time specified in that
notice, and unless otherwise specified in that notice, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the Company under any contract to
which the officer is a party.
3.5 Vacancies in Offices.
A vacancy in any office because of death, resignation, removal,
disqualification or other cause shall be filled by the Board of Managers. The
President may make temporary appointments to a vacant office reporting to the
President pending action by the Board of Managers.
3.6 President.
The President shall, subject to the control of the Board of Managers,
be responsible for the general supervision, direction and control of the
business and the officers of the Company. He or she shall have the general
powers and duties of management usually vested in the office of President and
Chief Executive Officer of a corporation and shall have such other powers and
duties as may be prescribed by the Board of Managers, the Operating Agreement or
these By-laws.
3.7 Secretary.
The Secretary shall keep or cause to be kept at the principal place of
business of the Company or such other place as the Board of Managers may direct
a book of minutes of all meetings and actions of the Board of Managers,
committees or other delegates of the Board of Managers (appointed in accordance
with the provisions of Section 11 of Article II) and the Members. The Secretary
shall keep or cause to be kept at the principal place of business of the Company
a register or a duplicate register showing the names of all Members and their
addresses, the class and percentage interests in the Company held by each, the
number and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation. The Secretary
shall give or cause to be given notice of all meetings of the Members and of the
Board of Managers (or committees or other delegates thereof) required to be
given by these By-laws or by applicable law and shall have such other powers and
perform such other duties as may be prescribed by the Board of Managers or the
President or by these By-laws.
3.8 Treasurer.
The Treasurer shall keep and maintain or cause to be kept and
maintained adequate and correct books and records of accounts of the properties
and business transactions of the Company. The books of account shall at all
reasonable times be open to inspection by any Manager. The Treasurer shall
deposit all monies and other valuables in the name and to the credit of the
Company with such depositaries as may be designated by the Board of Managers. He
or she shall disburse the funds of the Company as may be ordered by the Board of
Managers, shall render to the President and the Board of Managers, whenever they
request it, an account of
all of his or her transactions as Treasurer and of the financial condition of
the Company and shall have other powers and perform such other duties as may be
prescribed by the Board of Managers or the President or these By-laws.
ARTICLE IV
MAINTENANCE AND INSPECTION OF RECORDS
4.1 Member List.
The Company shall maintain at its principal place of business a record
of its Members, giving the names and addresses of all Members and the class and
percentage interests in the Company held by each Member. Subject to such
reasonable standards (including standards governing what information and
documents are to be furnished and at whose expense) as may be established by the
Board of Managers from time to time, each Member has the right to obtain from
the Company from time to time upon reasonable demand for any purpose reasonably
related to the Member's interest as a Member of the Company a record of the
Company's Members.
4.2 By-laws.
The Company shall keep at its principal place of business the original
or a copy of these By-laws as amended to date, which shall be open to inspection
by the Members at all reasonable times during office hours.
4.3 Other Records.
The accounting books and records, minutes of proceedings of the Members
and the Board of Managers and any committees or delegates of the Board of
Managers and all other information pertaining to the Company that is required to
be made available to the Members under the Delaware Act shall be kept at such
place or places designated by the Board of Managers or in the absence of such
designation, at the principal place of business of the Company. The minutes
shall be kept in written form and the accounting books and records and other
information shall be kept either in written form or in any other form capable of
being converted into written form. The books of account and records of the
Company shall be maintained in accordance with generally accepted accounting
principles consistently applied during the term of the Company, wherein all
transactions, matters and things relating to the business and properties of the
Company shall be currently entered, subject to such reasonable standards
(including standards, governing what information and documents are to be
furnished and at whose expense) as may be established by the Board of Managers
from time to time, minutes, accounting books and records and other information
shall be open to inspection upon the written demand of any Member at any
reasonable time during usual business hours for purposes reasonably related to
the Member's interests as a Member. Any such inspection may be made in person or
by an agent or attorney and shall include the right to copy and make extracts.
Notwithstanding the foregoing, the Board of Managers shall have the right to
keep confidential from Members for such period of time as the Board of Managers
deems reasonable any information which the Board of Managers reasonably believes
to be in the nature of trade secrets
or other information the disclosure of which the Board of Managers in good faith
believes is not in the best interests of the Company or could damage the Company
or its business or which the Company is required by law or by agreement with a
third party to keep confidential.
4.4 Inspection by Managers.
Every Manager shall have the right at any reasonable time to inspect
all books, records and documents of every kind and the physical properties of
the Company for a purpose reasonably related to his position as Manager. This
inspection by a Manager may be made in person or by an agent or attorney and the
right of inspection includes the right to copy and make extracts of documents.
ARTICLE V
GENERAL MATTERS
5.1 Checks, Drafts, Evidence of Indebtedness.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness issued in the name of or payable by the Company shall
be signed or endorsed in such manner and by such person or persons as shall be
designated from time to time in accordance with the resolution of the Board of
Managers.
5.2 Representation of Shares of Other Entities Held by Company.
The President or any other person authorized by the Board of Managers
is authorized to vote or represent on behalf of the Company any and all shares
of any corporation, partnership, limited liability company, trusts or other
entities, foreign or domestic, standing in the name of the Company. Such
authority may be exercised in person or by a proxy duly executed by such
designated person.
5.3 Seal.
The Board of Managers may approve and adopt an official seal of the
Company, which may be altered by them at any time. Unless otherwise required by
the Board of Managers, any seal so adopted shall not be necessary to be placed
on, and its absence shall not impair the validity of, any document, instrument
or other paper executed and delivered by or on behalf of the Company.
ARTICLE VI
AMENDMENTS AND INCORPORATION BY REFERENCE
6.1 Amendment.
These By-laws may be restated, amended, supplemented or repealed only
by an affirmative vote of a Majority in Interest of Members (or such other vote
of Members holding
such other LLC Interests as shall be required by the Operating Agreement, these
By-laws or applicable law).
6.2 Incorporation by Reference of By-laws into Operating Agreement.
These By-laws and any amendments hereto shall be deemed incorporated by
reference in the Operating Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification of Managers, Officers, Employees and Agents.
(a) 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 (hereinafter, a "proceeding")
by reason of the fact that he or she is or was a Manager or an officer of the
Company, or is or was serving at the request of the Company as a manager,
director, officer, employee or agent of another limited liability company or of
a corporation, partnership, joint venture, trust or other enterprise, including
a service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such a proceeding is alleged action in an
official capacity as a Manager, officer, employee or agent or in any other
capacity while serving as a Manager, officer, employee or agent, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the Delaware Act (including indemnification for negligence or gross negligence
but excluding indemnification (i) for acts or omissions involving actual fraud
or willful misconduct or (ii) with respect to any transaction from which the
indemnitee derived an improper personal benefit), against all expense, liability
and loss (including attorneys' fees, judgments, fines, excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith.
(b) The right to indemnification conferred in paragraph (a) shall
include the right to be paid by the Company the expenses (including attorneys'
fees) incurred in defending any proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"). The rights to indemnification and to
the advancement of expenses conferred in paragraph (a) and this paragraph (b)
shall be contract rights and such rights shall continue as to an indemnitee who
has ceased to be a Manager, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
(c) The rights to indemnification and to the advancement of expenses
conferred in this Section 7.1 shall not be exclusive of any other right that any
Person may have or hereafter acquire under any statute, agreement, vote of the
Managers or otherwise.
(d) The Company may maintain insurance, at its expense, to protect
itself and any Manager, officer, employee or agent of the Company or another
limited liability company, consultant, corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the Company would have the power to indemnify such Person against such expense,
liability or loss under the Delaware Act.
(e) The Company may, to the extent authorized from time to time by the
Board of Managers, grant rights to indemnification and to advancement of
expenses to any employee or agent of the Company to the fullest extent of the
provisions of this Section 7.1 with respect to the indemnification and
advancement of expenses of Managers and officers of the Company.
