By-Laws - Koss Corp.
BY-LAWS
OF
KOSS CORPORATION
(a Delaware corporation)
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REFERENCE TABLE
TO BY-LAWS OF
KOSS CORPORATION
(a Delaware corporation)
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ARTICLE I. OFFICES
1.01 Principal and Business Offices 1
1.02 Registered office 1
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting 1
2.02 special meeting 2
2.03 Place of Meeting 2
2.04 Notice of Meeting 2
2.05 Closing of Transfer Books or Fixing of Record Date 3
2.06 Voting Lists 4
2.07 Quorum 4
2.08 Conduct of Meetings 5
2.09 Proxies 5
2.10 Voting of Shares 5
2.11 Action Without Meeting 6
2.12 Voting of Shares by Certain Holders 6
(a) Other Corporations
(b) Legal Representatives and Fiduciaries
(c) Pledgees
(d) Treasury Stock and Subsidiaries
(e) Minors
(f) Incompetents and Spendthrifts
(g) Joint Tenants
2.13 Waiver of Notice by shareholders 8
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Number 8
3.02 Tenure and Qualifications 8
3.03 Regular Meetings 8
3.04 Special Meetings 9
3.05 Notice; waiver 9
3.06 Quorum 10
3.07 Telephonic Attendance 10
3.08 Manner of Acting 10
3.09 Conduct of Meetings 10
3.10 vacancies 10
3.11 Compensation 11
3.12 Presumption of Assent 11
3.13 Committees 12
3.14 Unanimous Consent Without Meeting 13
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ARTICLE IV. OFFICERS
4.01 Number 13
4.02 Election and Term of office 13
4.03 Removal 13
4.04 Vacancies 13
4.05 Chairman and Chief Executive officer 14
4.06 President and Chief Operating officer 14
4.07 Executive Vice President 15
4.08 Vice Presidents 15
4.09 Secretary 15
4.10 Treasurer 16
4.11 Assistant Secretaries and Assistant Treasurers 16
4.12 Other Assistants and Acting Officers 17
4.13 Salaries 17
ARTICLE V. LIABILITY OF OFFICERS AND DIRECTORS
5.01 Liability of Officers and Directors 17
ARTICLE VI. INDEMNIFICATION
6.01 Actions Other Than by the Corporation 18
6.02 Actions by or in the Right of the Corporation 18
6.03 Determination of Compliance with Standard of Conduct 19
6.04 Advancement of Costs 19
6.05 Insurance 19
6.06 Benefit 20
ARTICLE VII. CONTRACTS BETWEEN
CORPORATION AND RELATED PERSONS
7.01 Contracts Between Corporation and Related Persons 20
ARTICLE VIII. CONTRACTS, LOANS, CHECKS AND
DEPOSITS; SPECIAL CORPORATE ACTS
8.01 Contracts 21
8.02 Loans 21
8.03 Checks, Drafts, Etc. 21
8.04 Deposits 22
8.05 Voting of Shares Owned by the Corporation 22
ARTICLE IX. CERTIFICATES FOR
SHARES AND THEIR TRANSFER
9.01 Certificates for Shares 22
9.02 Facsimile Signatures and Seal 23
9.03 Signature by Former Officers 23
9.04 Transfer of Shares 23
9.05 Restrictions on Transfer 24
9.06 Lost, Destroyed or Stolen Certificates 24
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9.07 Consideration for Shares 24
9.08 Stock Regulations 24
ARTICLE X. FISCAL YEAR
10.01 Fiscal Year 24
ARTICLE XI. DIVIDENDS
11.01 Dividends 25
ARTICLE XII. SEAL
12.01 Seal 25
ARTICLE XIII. AMENDMENTS
13.01 By Shareholders 25
13.02 By Directors 25
13.03 Implied Amendments 25
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BY-LAWS
OF
KOSS CORPORATION
(a Delaware corporation)
AMENDED AND RESTATED
AS OF
OCTOBER 20, 1977
ARTICLE I. OFFICES
SECTION 1.01 Principal and Business Offices. The corporation may have
such principal and other business offices, as the Board of Directors may
designate or as the business of the corporation may require from time to time,
both within and without the State of Delaware, in any and all States of the
United States of America, in the District of Columbia, in any or all
commonwealths, territories, dependencies, colonies, possessions, agencies or
instrumentalities of the United States of America, and in any foreign
countries.
SECTION 1.02 Registered office. The registered office of the corporation
required by the Delaware General Corporation Law to be maintained in the State
of Delaware may be, but need not be, identical with the principal office in the
State of Delaware, and the address of the registered office may be changed from
time to time by the Board of Directors. The business office of the registered
agent of the corporation shall be identical to such registered office.
ARTICLE II. SHAREHOLDERS
SECTION 2.01 Annual Meeting. The annual meeting of the shareholders
shall be held on the fourth Thursday in the month of October in the year
beginning with the year 1978 at the hour of 10:30 o'clock a.m., or at such
other time and date within thirty days before or after said date as may be
authorized by the Board of Directors and set forth in the notice of meeting,
for the purpose of electing directors and for the transaction of such other
business as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the
SECTION 2.02 Special Meeting. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the Chairman and Chief Executive officer, the President and Chief operating
officer or the Board of Directors or by the person designated in the written
request of the holders of not less than one-tenth of all shares of the
corporation entitled to vote at the meeting.
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SECTION 2.03 Place of Meeting. 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. A waiver of notice signed by all shareholders entitled to vote
at a meeting may designate any place, either within or without the State of
Delaware, as the place for the holding of such meeting. If no designation is
made, or if a special meeting be otherwise called, the place of meeting shall
be the principal business office of the corporation in the State of Wisconsin
or such other suitable place in the county of such principal office as may be
designated by the person calling such meeting, but any meeting may be adjourned
to reconvene at any place designated by vote of a majority of the shares
represented thereat.
SECTION 2.04 Notice of Meeting. Written notice stating the place, day
and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
days (unless a longer period is required by law or the Certificate of
Incorporation) nor more than 60 days before the date of the meeting, either
personally, by mail or by telegram, by or at the direction of the Chairman and
Chief Executive officer, the President and Chief Operating Officer, the
Secretary or other officer or persons calling he meeting, to each shareholder
of record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, addressed to
the shareholder at his address as it appears on the stock record books of the
corporation, with postage thereon prepaid. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the corporation, if one be
appointed, that the notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. If any meeting of
shareholders is adjourned for more than 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 shareholder of record entitled to vote at the
meeting. Otherwise, when a meeting is adjourned to another time and 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.
SECTION 2.05 Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of the shareholders 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 allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or change
of stock or for the purpose of any other
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lawful action, or in order to make a determination of shareholders for
any other purpose, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period ending at least ten days before the
action for which eligibility notice or voting is being determined. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of shareholders, such date
in any case not to be more than 60 days and, in case of a meeting of
shareholders, not less than ten days prior to the date on which the particular
action requiring such determination of shareholders is to be taken. If the
stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders the record date for such determination of shareholders shall be at
the close of business on the date 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. If no record date is fixed,
the record date for determining shareholders 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 shareholders or and
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 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 2.06 Voting Lists. The officer or agent having charge of the
stock transfer books for shares of the corporation shall, at least ten days
before every meeting of shareholders, make a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each shareholder and the number of shares registered in the name
of each shareholder. This list shall be opened to the examination of any
shareholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to he 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 shareholder who is present. The original stock transfer books shall be the
only evidence as to who are the shareholders entitled to examine the stock
ledger, the list required by this section or the books of the corporation, or
to vote in person or by proxy at any meeting of shareholders. Failure to
comply with the requirements of this
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section shall not affect the validity of any action taken at such meeting.
SECTION 2.07. Quorum. Except as otherwise provided in the certificate
of Incorporation, a majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum at a meeting of shareholders. If
a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on the subject matter shall be
the act of the shareholders unless the vote of a greater number or voting by
classes is required by law or the Certificate of Incorporation. Though less
than a quorum of the outstanding shares are represented at a meeting, a
majority of the shares so represented may adjourn the meeting from time to time
without further notice. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. The shareholders present at
a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
SECTION 2.08. Conduct of Meetings. Meetings of the shareholders shall be
presided over by one of the following officers in the order of seniority, if
present and acting: the Chairman and Chief Executive officer, the President and
Chief Operating Officer, the Executive Vice President, a Vice President in the
order provided under SECTION 4.08 or if none of the foregoing is in office and
present and acting, by a chairman chosen by the shareholders present. The
Secretary of the corporation, or in his absence, an Assistant Secretary, or if
none be present, any person appointed by the presiding officer shall act as
secretary of the meeting.
SECTION 2.09 Proxies. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by the
shareholder or by his duly authorized attorney in fact. Such proxy shall be
filed with the Secretary of the corporation before or at the time of the
meeting. Unless otherwise provided in the proxy, a proxy may be revoked a any
time before it is voted, either by written notice filed with the secretary or
the acting secretary of the meeting or by oral notice given by the shareholder
to the presiding officer during the meeting. The presence of a shareholder who
has filed his proxy shall not of itself constitute a revocation. No proxy
shall be valid after three years from the date of its execution, unless
otherwise provided in the proxy. The Board of Directors shall have the power
and authority to make rules establishing presumptions as to the validity and
sufficiency of proxies.
SECTION 2.10 Voting of Shares. Each outstanding share shall be entitled
to one vote upon each matter submitted to a
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vote at a meeting of shareholders, except to the extent that the voting rights
of the shares of any class or classes are enlarged, limited or denied by the
Certificate of Incorporation.
SECTION 2.11 Action without Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of shareholders of the corporation, or any action which may be
taken at any annual or special meeting of such shareholders, may be taken
without a meeting, without prior notice and without a vote, if a consent 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. Prompt notice of the taking
of the corporate action without a meeting by less than unanimous written
consent shall be given to those shareholders who have not consented in writing.
SECTION 2.12 Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name of another
corporation may be voted either in person or by proxy, by the president of such
corporation or any other officer appointed by such president. A proxy executed
by any principal officer of such other corporation or assistant thereto shall
be conclusive evidence of the signer's authority to act, in the absence of
express notice to this corporation, given in writing to the Secretary, of the
designation of some other person by the Board of Directors or the By-Laws of
such other corporation.
(b) Legal Representatives and Fiduciaries. Shares held by an
administrator, executor, guardian, conservator, trustee in bankruptcy, receiver
or assignee for creditors may be voted by him either in person or by proxy,
without a transfer of such shares into his name, provided that there is filed
with the Secretary before or at the time of meeting proper evidence of his
incumbency and the number of shares held. Shares standing in the name of a
fiduciary may be voted by him, either in person or by proxy. A proxy executed
by a fiduciary shall be conclusive evidence of the signer's authority to act,
in the absence of express notice to this corporation, given in writing to the
Secretary of this corporation, that such manner of voting is expressly
prohibited or otherwise directed by the document creating the fiduciary
relationship.
(c) Pledgees. A shareholder whose shares are pledged shall be
entitled to vote such shares, unless there is a transfer by the pledgor on the
books of the corporation in which he has expressly empowered the pledgee to
vote thereon, in which case only the pledgee or his proxy may represent such
stock and vote thereon.
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(d) Treasury Stock and Subsidiaries.. Neither treasury shares
nor shares held by another corporation if a majority of the shares entitled to
vote for the election of directors of such other corporation is held, directly
or indirectly, by this corporation, shall be voted at any meeting or counted in
determining the total number of outstanding shares entitled to vote, but shares
of its own issue held by this corporation in a fiduciary capacity, or held by
such other corporation in a fiduciary capacity, may be voted and shall be
counted in determining the total number of outstanding shares entitled to vote.
(e) Minors. Shares held by a minor may be voted by such minor in
person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the corporation has
received written notice or has actual knowledge that such shareholder is a
minor.
(f) Incompetents and Spendthrifts. Shares held by an incompetent
or spendthrift may be voted by such incompetent or spendthrift in person or by
proxy and no such vote shall be subject to disaffirmance or avoidance, unless
prior to such vote the Secretary of the corporation has actual knowledge that
such shareholder has been adjudicated an incompetent or spendthrift or actual
knowledge of filing of judicial proceedings for appointment of a guardian.
(g) Joint Tenants. Shares registered im the names of two or more
individuals who are named in the registration as joint tenants may be voted in
person or by proxy signed by any one or more of such individuals if either (i)
no other such individual or his legal representative is present and claims the
right to participate in the voting of such shares or prior to the vote files
with the Secretary of the corporation a contrary written voting authorization
or direction or written denial of authority of the individual present or
signing the proxy proposed to be voted or (ii) all such other individuals are
deceased and the secretary of the corporation has no actual knowledge that the
survivor has been adjudicated not to be the successor to the interests of those
deceased.
SECTION 2.13 Waiver of Notice by Shareholders. Whenever any notice
whatever is required to be given to any shareholder of the corporation under
the Certificate of Incorporation or By-Laws or any provision of law, a waiver
thereof in writing, signed at any time, whether before or after the time of
meeting, by the shareholder entitled to such notice, shall be deemed equivalent
to the giving of such notice; provided that such waiver in respect to any
matter of which notice is required under any provision of the Delaware General
Corporation Law, shall contain the same information as would have been required
to be included
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in such notice, except the time and place of meeting. Attendance of a
shareholder at a meeting shall constitute a waiver of notice of such meeting,
except when the shareholder attends for the express purpose of objecting at
the beginning to the transaction of any business because the meeting was not
properly called. Neither the business to be transacted at nor the purpose of
any regular or special meeting of the shareholders need be specified in any
written waiver of notice.
ARTICLE III. BOARD OF DIRECTORS
SECTION 3.01 The number of Directors of the Corporation shall be no fewer
than six and no greater than twelve.
SECTION 3.02 Tenure and Qualifications. Each director shall hold office
until the next annual meeting of shareholders and until his successor shall
have been elected, or until his prior death, resignation or removal. A
director may be removed from office by affirmative vote of a majority of the
outstanding shares entitled to vote for the election of such director, taken at
a meeting of shareholders called for that purpose. A director may resign at
any time by filing his written resignation with the Secretary of the
corporation. Directors need not be residents of the State of Delaware or
shareholders of the corporation.
SECTION 3.03 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law, except as to
time, within forty (40) days after the annual meeting of shareholders, and each
adjourned session thereof.
SECTION 3.04 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman and Chief
Executive Officer, the President and Chief Operating Officer, Secretary or any
two directors. The person or persons authorized to call special meetings of
the Board of Directors may fix any place, either within or without the State of
Delaware, as the place for holding any special meeting of the Board Directors
called by them, and if no other place is fixed the place of meeting shall be
the principal business office of the Corporation in the State of Wisconsin.
SECTION 3.05 Notice; Waiver. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to SECTION 3.03) shall be
given by written notice delivered personally, by mail or by telegram to each
director at his business address or at such other address as such director
shall have designated in writing filed with the Secretary, not less than 48
hours in advance of such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail so addressed, with postage
thereon prepaid. If notice is given by telegram, such notice shall be deemed
to be
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delivered when the telegram is delivered to the telegraph company.
Whenever any notice whatever is required to be given to any director of the
corporation under the Certificate of Incorporation or By-Laws or any provision
of law, a waiver thereof in writing, signed at any time, whether before or
after the time of meeting, by the director entitled to such notice, shall be
deemed equivalent to the giving of such notice. The attendance of a director
at a meeting shall constitute a waiver of such notice, except where a director
attends a meeting and objects thereat to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business
to be transacted at, not the purpose of any regular or special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting.
SECTION 3.06 Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation or these By-Laws, at least one-third of the number
of directors set forth in SECTION 3.01 shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but a
majority of the directors present (though less than such quorum) may adjourn
the meeting from time to time without further notice.
SECTION 3.07 Telephonic Attendance. The Board of Directors, or any
individual member thereof, may participate in a meeting of the Board, or any
committee designated by the Board, by means of conference, telephone or a
similar communications equipment provided that during the conduct of such
meeting all persons participating therein can hear each other. Participation
in a meeting pursuant to this section shall constitute a presence in person at
such meeting.
SECTION 3.08 Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless the act of a greater number is required by law or by the
Certificate of Incorporation or these By-Laws.
SECTION 3.09 Conduct of Meetings. The meetings of the Board of Directors
shall be presided over by one of the following officers in the order of
seniority, if present and acting: the Chairman and Chief Executive Officer, the
President and Chief Operating Officer, the Executive vice President, provided
he be a director, a Vice President designated pursuant to SECTION 4.08,
provided he be a director, or any director chosen by the directors present.
The Secretary of the corporation shall act as secretary of all meetings of the
Board of Directors, but in the absence of the Secretary, the presiding officer
may appoint any Assistant Secretary or any director or other person present to
act as secretary of the meeting.
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SECTION 3.10 Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy created by an increase in the number of
directors, may be filled until the next succeeding annual election by the
affirmative vote of a majority of the directors then in office, though less
than a quorum of the Board of Directors, or by a sole remaining director, and
the directors so chosen shall hold office until the next annual election and
until their successors are duly elected and shall qualify, unless sooner
displaced; provided that in case of a vacancy created by the removal of a
Director by the vote of shareholders, the shareholders shall have the right to
fill such vacancy at the same meeting or any adjournment thereof. If there are
no directors in office, then any officer or any shareholder or an executor,
administrator, trustee or guardian of a shareholder, or, other fiduciary
entrusted with like responsibility for the person or estate of a shareholder,
may call a special meeting of shareholders in accordance with the provisions of
the Certificate of Incorporation or the By-Laws, or may apply to the Court of
Chancery for a decree summarily ordering an election. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any shareholder or shareholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
SECTION 3.11 Compensation. The Board of Directors, irrespective of any
personal interest of any of its members, may establish reasonable compensation
of all directors for services to the corporation as directors, officers or
otherwise, or may delegate such authority to an appropriate committee. Members
of the Board may be paid their expenses, if any, of attendance at each meeting
of the Board at any place other than the county in which the principal business
office of the corporation is located. The Board of Directors also shall have
authority to provide for or to delegate authority to an appropriate committee
to provide for reasonable pensions, disability or death benefits and other
benefits or payments, to directors, officers and employees and to their
estates, families, dependents or beneficiaries on account of prior services
rendered by such directors, officers and employees to the corporation.
SECTION 3.12 Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors or a committee thereof of which
he is a member at which action on any corporate matter is taken shall be
presumed to have assented to the action unless his dissent shall be entered in
the minutes of the meeting or unless he shall file his written dissent to
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such action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
SECTION 3.13 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. The
Board may designate one or more directors as alternative members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or 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
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority to amend the
Certificate of Incorporation, adopt an agreement of merger or consolidation,
recommend to the shareholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommend to the
shareholders a dissolution of the corporation or a revocation of a dissolution
or amend the By-Laws of the corporation; and, unless the resolution, By-Laws or
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. Each such committee shall fix its own rules governing the conduct of
its activities and shall make such reports to the Board of Directors of its
activities as the Board of Directors may request.
SECTION 3.14 Unanimous Consent Without Meeting. Any action required or
permitted by the Certificate of Incorporation or By-Laws or any provision of
law to be taken by the Board of Directors at a meeting or by resolution may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all the directors then in office, and such written
consent is filed with the minutes of proceedings of the Board.
ARTICLE IV. OFFICERS
SECTION 4.01 Number. The principal officers of the corporation shall be
a Chairman and Chief Executive Officer, a President and Chief Operating
Officer, an Executive Vice
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President, one or more other Vice Presidents (the number, precedent and duties
thereof to be determined by the Board of Directors), a Secretary and a
Treasurer, each of whom shall be elected by the Board of Directors. Such other
officers and assistant officers as may be deemed necessary may be elected or
appointed by the Board of Directors.
SECTION 4.02 Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually
by the Board of Directors at the first meeting of the Board of Directors held
after each annual meeting of the shareholders. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. The Board of Directors may create a new
principal office, including the addition of a new Vice President, and elect an
officer thereto at any regular or special meeting of the Board of Directors.
Each officer shall hold office until his successor shall have been duly elected
or until his prior death, resignation or removal.
SECTION 4.03 Removal. Any officer or agent may be removed by the Board
of Directors whenever in its judgment the best interests of the corporation
will be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or appointment
shall not of itself create contract rights.
SECTION 4.04 Vacancies A vacancy in any principal office because of
death, resignation, removal, disqualification or otherwise, including a vacancy
caused by the creation of a new principal office by the Board of Directors,
shall be filled by the Board of Directors for the unexpired portion of the
term.
SECTION 4.05 Chairman and chief Executive Officer. The Chairman and
Chief Executive Officer shall be the principal executive officer of the
corporation and, subject to the control of the Board of Directors, shall in
general supervise and control all the business and affairs of the corporation.
He shall preside at all meetings of the shareholders and the Board of
Directors. He shall have authority, subject to such rules as may be prescribed
by the Board of Directors, to appoint such agents and employees of the
corporation as he shall deem necessary, to prescribe their powers, duties and
compensation, and to delegate authority to them Such agents and employees shall
hold office at the discretion of the Chairman and Chief Executive officer. He
shall have the authority to sign, execute and acknowledge, on behalf of the
corporation, all contracts, deeds, mortgages, bonds, stock Certificates,
leases, reports and all other documents or instruments necessary or proper to
be executed in the course of the corporation's regular business, or which shall
be authorized by resolution of the Board of Directors. He may execute any such
documents or instruments without the attestation
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of any other corporate officer unless required by the Board of Directors, the
transaction or operation of law. Except as otherwise provided by law or the
Board of Directors, he may authorize the President and Chief Operating officer,
the Executive Vice President, any Vice President or other officer or agent of
the corporation to sign, execute and acknowledge such documents or instruments
in his place and stead. In general, he shall have such other powers and duties
as he may be called upon to perform by the Board of Directors
SECTION 4.06 President and Chief Operating Officer. The President and
Chief Operating Officer shall be the principal operating officer of the
corporation and shall be subject to the control of the Chairman and Chief
Executive Officer. In the absence of the Chairman and Chief Executive officer
or in the event of his death, disability or refusal to act, the President and
Chief operating officer shall perform the duties of the Chairman and Chief
Executive officer and when so acting shall have all the powers and duties of
the Chairman and Chief Executive Officer in general, he shall perform all
duties incident to the office of President and Chief operating officer and such
other duties as may be assigned to him from time to time by the Board of
Directors or the Chairman and Chief Executive officer.
SECTION 4.07 Executive Vice President. The Executive Vice President,
shall assist the President and Chief Operating Officer in the discharge of
supervisory managerial and executive duties and functions. In the absence of
the President and Chief Operating Officer or in the event of his death,
inability or refusal to act, the Executive Vice President shall perform the
duties of the President and Chief Operating Officer and when so acting shall
have all the powers and duties of said President and Chief Operating Officer.
He shall perform such other duties as from time to time may be assigned to him
by the Board of Directors, the Chairman and Chief Executive Officer for the
President and Chief Operating Officer.
SECTION 4.08 Vice Presidents. In the absence of the President and Chief
Operating Officer and Executive Vice President or in the event of their death,
inability or refusal to act, or in the event for any reason it shall be
impracticable for the President and Chief Operating Officer and the Executive
Vice President to act personally, the Vice President (or in the event there be
more than one vice President, the Vice Presidents in the order designated by
the Board of Directors, or in the absence of any designation, then in the order
of their election) shall perform the duties of the President and Chief
Operating Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President and Chief Operating Officer.
Any Vice President may sign, if required by the Board of Directors, the
transaction or operation of law, with the
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Secretary or Assistant Secretary, certificates for shares of the corporation;
and shall perform such other duties and have such authority as from time to
time may be delegated or assigned to him by the President and Chief Operating
Officer or by the Board of Directors. The execution of any instrument of the
corporation by any Vice President shall be conclusive evidence, as to third
parties, of his authority to act in the stead of the President and Chief
Operating Officer.
SECTION 4.09 Secretary. The Secretary shall (a) keep the minutes of
the meetings of the shareholders and of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents, the execution of
which on behalf of the corporation under its seal is duly authorized; (d) keep
or arrange for the keeping of a register of the post office address of each
shareholder which shall be furnished to the Secretary by such shareholder; (e)
if required by the Board of Directors, the transaction or, operation of law,
sign with the Chairman and Chief Executive Officer, the President and Chief
Operating Officer, the Executive Vice President, or a Vice President,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (f) have general
charge of the stock transfer books of the corporation; and (g) in general,
perform all duties and exercise such authority as from time to time may be
delegated or assigned to him by the President and Chief Operating Officer or by
the Board of Directors.
SECTION 4.10 Treasurer. The Treasurer shall (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for monies due and payable to the corporation from
any source whatsoever, and deposit all such monies in the name of the
corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of SECTION 8.04; and (c) in general,
perform all of the duties incident to the office of Treasurer and have such
other duties and exercise such other authority as from time to time may be
delegated or assigned to him by the President and Chief Operating Officer or by
the Board of Directors. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the Board of Directors shall determine.
SECTION 4.11 Assistant Secretaries and Assistant Treasurers. There shall
be such number of Assistant Secretaries and Assistant Treasurers as the Board
of Directors may from time to time authorize. If required by the Board of
Directors, the transaction or operation of law, the Assistant Secretaries may
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sign with the Chairman and Chief Executive Officer, the President and Chief
Operating Officer, the Executive Vice President or a Vice President
certificates for shares of the corporation the issuance of which shall have
been authorized by a resolution of the Board of Directors. The Assistant
Treasurers shall respectively, if required by the Board of Directors, give
bonds for the faithful discharge of their duties in such sums and with such
sureties as the Board of Directors shall determine. The Assistant Secretaries
and Assistant Treasurers, in general, shall perform such duties and have such
authority as shall from time to time be delegated or assigned to them by the
Secretary or the Treasurer, respectively, or by the President and Chief
Operating Officer or the Board of Directors.
SECTION 4.12 Other Assistants and Acting Officers. The Board of Directors
shall have the power to appoint any person to act as assistant to any officer,
or as agent for the corporation in his stead, or to perform the duties of such
officer whenever for any reason it is impracticable for such officer to act
personally, and such assistant or acting officer or other agent so appointed by
the Board of Directors shall have the power to perform all the duties of the
office to which he is so appointed to be assistant, or as to which he is so
appointed to act, except as such power may be otherwise defined or restricted
by the Board of Directors.
SECTION 4.13 Salaries. The salaries of all principal officers shall be
subject to the review and approval of the Compensation Committee who shall then
make a recommendation to the Board of Directors for their approval or
rejection. No officer shall be prevented from receiving a salary by reason of
the fact that be is also a director of the corporation.
ARTICLE V. LIABILITY OF OFFICERS
AND DIRECTORS
SECTION 5.01 No person shall be liable to the corporation for any loss or
damage suffered by it on account of any action taken or omitted to be taken by
him as a director or officer of this corporation, or of any other corporation
which he serves as a director or officer at the request of this corporation, in
good faith, if such person (a) exercised and used the same degree of care and
skill as a prudent man would have exercised or used under the circumstances in
the conduct of his own affairs or (b) took or omitted to take such action in
reliance upon advice of counsel for the corporation or upon statements made or
information furnished by officers or employees of the corporation which he had
reasonable grounds to believe to be true. The foregoing shall not be exclusive
of other rights and defenses to which he may be entitled as a matter of law.
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BYLAWS
ARTICLE VI. INDEMNIFICATION
SECTION 6.01. Actions Other Than by the Corporation. Subject to the
limitations contained in this Article VI. the corporation shall, to the fullest
extent permitted by the Delaware General Corporation Law and other applicable
laws, as in effect from time to time, indemnify any person who was or is a
party or is threatened to be made a party to any formal or informal threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, any action
brought under federal or state securities laws, rules or regulations
(collectively, "Actions" and individually an "Action"), other than an Action by
or in the right of the corporation and other than an Action asserted by such
person against the corporation for any reason other than to enforce his rights
under this Article VI, by reason of the fact that he is or was a director or
officer of the corporation, or by reason of the fact that such person is or was
a director or officer of the corporation and is or was serving at the request
oil the corporation as a director, officer, employee, consultant or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
is or was serving at the request of the corporation as a fiduciary of an
employee benefit plan or an employee or agent of the corporation against (a)
expenses, including, without limitation, attorneys' fees, actually and
reasonably incurred in connection with any Action; (b) amounts actually and
reasonably incurred in settlement of any Action; and (c) judgments, fines,
penalties or other amounts actually incurred pursuant to an adjudication of
liability in connection with any Action; provided, however, that no director or
officer shall be entitled to indemnification under this section unless, with
respect to the conduct that is the subject of the Action, he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding he had no reasonable cause to believe his conduct was unlawful. The
termination of any Action by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, that the
person had reasonable cause to believe that conduct was unlawful.
SECTION 6.02. Actions by or in the Right of the Corporation. Subject to
the limitations contained in this Article VI, any person who was or is a party
or is threatened to be made a party to any Action by or in the right of the
corporation to procure a judgment in its favor by reason of the fact he is or
was a director or officer of the corporation, or by reason of the fact that
such
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person is or was a director or officer of the corporation and is or was
serving at the request of the corporation as a director, officer, employee,
consultant or agent of another corporation, partnership, joint venture, trust
or other enterprise, or is or was serving at the request of the corporation as
a fiduciary of an employee benefit plan or as an employee or agent of the
corporation, shall be indemnified by the corporation, to the fullest extent
permitted by the Delaware General Corporation Law and other applicable laws, as
in effect from time to time, against (a) expenses, including, without
limitation attorneys' fees actually and reasonably incurred in connection with
any Action; (b) amounts actually and reasonably incurred in settlement of any
Action; and (c) judgments, fines, penalties or other amounts actually incurred
pursuant to an adjudication of liability in connection with any Action;
provided, however, that no director or officer shall be entitled to
indemnification under this section unless, with respect to the conduct that is
the subject of the Action, he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such Action
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
SECTION 6.03. Successful Defense of Actions. To the extent that a
director or officer of the corporation has been successful on the merits
otherwise in defending any Action described in Section 6.01 or 6.02 (including,
without limitation, the settlement, dismissal, abandonment or withdrawal of any
Action where he does not pay or assume any liability), he shall be indemnified
by the corporation against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection therewith.
SECTION 6.04. Procedure for Indemnification. Any indemnification under
Sections 6.01 and 6.02 of this Article VI, unless ordered by a court, shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of such director or officer of the
corporation is proper in the circumstances because he has met the applicable
standard of conduct set forth in said Sections 6.01 and 6.02. Such
determination shall be made within 60 days following a request for
indemnification by a director or officer (a) by arbitration if requested or
directed pursuant to Section 6.07(c); (b) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to the
subject Action; (c) if such a quorum is not obtainable or, even if obtainable,
a quorum of disinterested directors so directs, by independent legal counsel in
a written
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opinion; or (d) by the affirmative vote of a majority of the shares
entitled to vote thereon. The person or persons making the determination with
respect to indemnification hereunder may, to the extent they deem appropriate,
authorize the corporation to pay interest to a director or officer, at a
reasonable interest rate, for amounts actually paid by him and determined to be
a proper subject for indemnification. All fees, costs and expenses associated
with the indemnification procedures set forth in this Section 6.04 or otherwise
incurred by a director or officer to enforce his rights to indemnification
provided in this Article VI, including, without limitation, the fees, costs and
expenses of the independent legal counsel selected hereunder, shall be paid by
the corporation.
SECTION 6.05. Advance Payment of Expenses. Expenses, including, without
limitation, attorneys' fees, actually and reasonably incurred by a director or
officer in connection with any Action, no matter by whom brought, shall be paid
by the corporation to the director or officer in advance of the final
disposition of such Action within 30 days of a written requests for advance
payment of expenses which shall be accompanied by reasonable documentation of
the amount of the claimed expenses. To receive advanced expenses under this
Section 6.05, a director or officer must first enter into a written agreement
with the corporation in which he warrants his good faith belief that he has met
the appropriate standard of conduct set forth in Section 6.01 or 6.02, as the
case may be, of this Article VI and agrees to repay any advances made pursuant
to this Section 6.05 if it is determined that such director, or officer is not
entitled to indemnification by the corporation for such amounts pursuant to
the procedures of Section 6.04 of this Article VI.
SECTION 6.06. Partial Indemnification.
(a) If it is determined pursuant to Section 6.04 of this Article VI
that a director or officer is entitled to indemnification as to some claims,
issues or matters, but not as to other claims, issues or matters, involved in
any Action, no matter by whom brought, the person or persons making such
determination shall reasonably determine which expenses, including, without
limitation, attorneys' fees, amounts paid in settlement and/or judgments,
penalties or fines, are the result of claims, issues or matters that are a
proper subject for indemnification hereunder in light of all of the
circumstances of such Action.
(b) If it is determined pursuant to Section 6.04, of this Article VI
that certain amounts paid by a director or officer, whether for expenses,
attorneys' fees and/or amounts paid in settlement in connection with any
Action, no matter by whom brought, are for any reason unreasonable in amount in
light of all the circumstances of such Action, the person or persons making
such
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determination shall authorize the indemnification of the director or officer
for only such amounts as he or they shall deem reasonable.
SECTION 6.07. Other Rights.
(a) General. The indemnification and advancement of expenses provided for
in this Article VI shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any agreement with the corporation, any By-Law of the corporation, any vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. Nothing contained in this Article VI shall preclude the Board of
Directors from determining, in its discretion, that persons serving as agents
or employees of the corporation or as fiduciaries of an employee benefit plan
of the corporation shall be entitled to the indemnification and advancement of
expenses provided to directors and officers of the corporation in this Article
VI.
(b) Contribution. If a director or officer requesting indemnity due to
any Action is determined to be ineligible for the indemnity provided for in
Section 6.01 or Section 6.02, as the case may be, of this Article VI, the
corporation, in lieu of indemnifying such officer or director, shall contribute
to the amount actually and reasonably incurred by him, whether for expenses,
including, without limitation, attorneys' fees, amounts reasonably paid in
settlement and/or judgments, fines or penalties incurred in connection with any
Action, no matter by whom brought, in such proportion as is determined to be
fair and reasonable by the persons or persons making the determination as to
indemnification pursuant to Section 6.04 of this Article VI, or by the court
before which such Action was brought, in light of all the circumstances of such
Action, in order to reflect the relative benefits received by the corporation
and the director or officer as a result of the occurrences giving cause to such
Action and/or the relative fault of the corporation and the director or officer
in connection with such occurrences; provided, however, that no director or
officer shall be entitled to contribution from the corporation under this
Section 6.07(b) if it is determined pursuant to Section 6.04, or by the court
before which such Action was brought, that the director or officer engaged in
criminal, fraudulent, reckless or willful misconduct in or disregard for the
performance of his duty to the corporation.
(c) Arbitration. If requested by the director or officer seeking
indemnification, contribution or any other rights provided under this Article
VI, or by any person or persons authorized to make determinations pursuant to
Section 6.04, any indemnification or other rights to be provided to an officer
or director under this Article V, unless ordered by the court before with an
Action was
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brought, shall be authorized by a panel of three arbitrators in the city in
which the corporation's principle executive offices are then located in
accordance with the rules then prevailing of the American Arbitration
Association, upon a determination in each specific case that the
indemnification or other rights provided to the officer or director is proper
under the circumstances because he has met the applicable standard of conduct
set forth in the respective provisions of this Article VI. One of the
arbitrators shall be selected by the Board of Directors of the corporation by a
majority vote of a quorum consisting of directors who were not parties to the
Action that is the subject of the indemnification (or, if such a quorum is not
obtainable, by an independent legal counsel chosen by the Board of Directors
of the corporation), the second arbitrator shall be selected by the director or
officer who may be entitled to indemnification or other rights under this
Article VI and the third arbitrator shall be a member in good standing of the
American Arbitration Association of 180 North LaSalle Street, Chicago,
Illinois, who will be selected by the two arbitrators selected by the foregoing
parties.
SECTION 6.08. Severability of Provisions. The provisions of this Article
VI and the several rights to indemnification, advancement of expenses,
contribution, arbitration and limitation of actions created hereby are
independent and severable and, in the event that any such provision and/or
right shall be held by a court of competent jurisdiction in which an Action
relating to such provisions and/or rights is brought to be against public
policy or otherwise to be unenforceable, the other provisions of this Article
VI shall remain enforceable and in full effect.
SECTION 6.09. Purchase of Insurance. The Corporation shall use its best
efforts to purchase and maintain insurance on behalf of any person who is or
was a director or officer of the Corporation, to the extent that such director
or officer is insurable and such insurance coverage ran be secured by the
Corporation at rates, and in amounts and subject to such terms and conditions
as shall be determined in good faith to be reasonable and appropriate by the
Board of Directors of the Corporation, and whose determination shall be
conclusive, against liability asserted against him or incurred by him im any
such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VI.
SECTION 6.10. Benefit. The rights to indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall continue as
to a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION 6.11. Amendment. No amendment or repeal of this Article VI shall
be effective to reduce the obligations of the
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corporation under this Article VI with respect to any Action based upon
occurrences which take place prior to such amendment or repeal.
ARTICLE VII. CONTRACTS BETWEEN
CORPORATION AND RELATED PERSONS
SECTION 7.01. 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 or committee thereof which authorizes the contract or transaction
solely because his or their votes are counted for such purposes, if (a) the
material facts as to his relationship of interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; (b)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the contract vote of the shareholders; 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
shareholders. 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. This Article VII shall not be
construed to invalidate any contract or other transaction which would otherwise
be valid under the common and statutory law applicable thereto.
ARTICLE VIII. CONTRACTS, LOANS, CHECKS AND
DEPOSITS; SPECIAL CORPORATE ACTS
SECTION 8.01 Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute or
deliver any instrument in the name of and on behalf of the corporation, and
such authorization may be general or confined to specific instances. In the
absence of other designation, all contracts, deeds, mortgages and instruments
of assignment or pledge made by the corporation shall be executed in the name
of the corporation by the Chairman and Chief Executive Officer, or any other
officer of the corporation authorized by the chairman and Chief Executive
officer, and if required by the Board of Directors, the transaction or
operation of law, by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary
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or required, shall affix the corporate seal thereto; and when so executed no
other party to such instrument or any third party shall be required to make
any inquiry into the authority of the signing officer or officers.
SECTION 8.02 Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by or under the authority of a resolution of the Board of Directors.
Such authorization may be general or confined to specific instances.
SECTION 8.03 Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or 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 from time to time be
determined by or under the authority of a resolution of the Board of Directors.
SECTION 8.04 Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as may be selected by or
under the authority of a resolution of the Board of Directors.
SECTION 8.05 Voting of Shares Owned by the Corporation. Subject always
to the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the Chairman and Chief Executive officer of this corporation if
he be present, or in his absence by the President and Chief Operating Officer,
or in his absence the Executive Vice President, or if he be absent any Vice
President of this corporation who may be present and (b) whenever, in the
judgment of the Chairman and Chief Executive officer or in his absence, the
President and Chief Operating officer, or in his absence the Executive Vice
President, or if he be absent any Vice 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 Chairman and Chief Executive Officer or in his absence, the
President and Chief Operating Officer, the Executive Vice President or one of
the Vice Presidents of this corporation without necessity of any authorization
by the Board of Directors, affixation of corporate seal cr countersignature or
attestation by another officer. 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.
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ARTICLE IX. CERTIFICATES FOR
SHARES AND THEIR TRANSFER
SECTION 9.01 Certificates for Shares. Certificates representing shares
of the corporation shall be in such form, consistent with law, as shall be
determined by the Board of Directors. Such certificates shall be signed by the
Chairman and Chief Executive Officer, President and Chief Operating Officer,
the Executive Vice President or a Vice President and, if required by the Board
of Directors, the transaction or operation of law, by the Secretary or an
Assistant Secretary. All certificates for shares shall be consecutively
numbered or otherwise identified. The name and address 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 stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be canceled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, except as provided
in SECTION 9.06.
SECTION 9.02 Facsimile Signatures and Seal. The seal of the corporation
on any certificates for shares may be a facsimile. The signatures of the
Chairman and Chief Executive officer, President and Chief Operating Officer,
the Executive Vice President or Vice President and the Secretary or Assistant
Secretary upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent, or registered by a registrar, other than the
corporation itself or an employee of the corporation.
SECTION 9.03 Signature Former Officers. In case any officer, who has
signed or whose facsimile signature has been placed upon any certificate for
shares, shall have ceased to be such officer before such certificate is issued,
it may be issued by the corporation with the same effect as if he were such
officer at the date of its issue.
SECTION 9.04 Transfer of Shares. The Board of Directors may appoint one
or more transfer agents and one or more registrars of its stock of any class or
classes, whose respective duties shall be defined by the Board of Directors.
Prior to due presentment of a certificate for the shares for registration of
transfer the corporation may treat the registered owner of such shares as the
person exclusively entitled to vote, to receive notifications and otherwise to
exercise all the rights and powers of an owner. Where a certificate for shares
is presented to a transfer agent of the corporation, if one be appointed, or to
the corporation if no transfer agent has been appointed, with a request to
register for transfer, the transfer agent and corporation shall not be liable
to the owner or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate the
necessary endorsements and (b) the transfer agent, if one be Appointed, and the
corporation had no duty to inquire
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into adverse claims or has discharged any such duty. The transfer agent, if
one be appointed, and the corporation may require reasonable assurance that
said endorsements are genuine and effective and comply with such other
regulations as may be prescribed under the authority of the Board of Directors.
SECTION 9.05 Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
SECTION 9.06 Lost, Destroyed or Stolen Certificates. Where the owner
claims that his certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the corporation has notice that such shares have been acquired
by a bona fide purchaser, (b) files with the corporation a sufficient indemnity
bond, and (c) satisfies such other reasonable requirements as the Board of
Directors may prescribe.
SECTION 9.07 Consideration for Shares. The shares of the corporation may
be issued for such consideration, not less than the par value thereof (if any),
as shall be fixed from time to time by the Board of Directors The
consideration to be paid for shares may be paid in whole or in part, in money,
in other property, tangible or intangible, or in labor or services actually
performed for the corporation. When payment of the consideration for which
shares are to be issued shall have been received by the corporation, such
shares shall be deemed to be fully paid and nonassessable by the corporation.
No certificate shall be issued for any share until it is fully paid.
SECTION 9.08 Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the statutes of the State of Delaware as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
ARTICLE X. FISCAL YEAR
SECTION 10.01 The fiscal year of the corporation shall begin on July I of
each year.
ARTICLE XI. DIVIDENDS
SECTION 11.01 The Board of Directors may from time to time declare, and
the corporation may pay, dividends on its outstanding shares in the manner and
upon the terms and conditions provided by law and its Certificate of
Incorporation.
ARTICLE XII. SEAL
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SECTION 12.01 The Board of Directors shall provide a corporate seal which
shall be circular in form and shall have inscribed thereon the name of the
corporation, the state of incorporation and the words "Corporate Seal".
ARTICLE XIII. AMENDMENTS
SECTION 13.01 By Shareholders. These By-Laws may be altered, amended or
repealed and new By-Laws may be adopted by the shareholders by affirmative vote
of not less than a majority of the shares present or represented at any annual
or special meeting of the shareholders at which a quorum is in attendance.
SECTION 13.02 By Directors. These By-Laws may also be altered, amended
or repealed and new By-Laws may be adopted by the Board of Directors by
affirmative vote of a majority of the number of directors present at any
meeting at which a quorum is in attendance; but no By-Law adopted by the
shareholders shall be amended or repealed by the Board of Directors if the
By-Law so adopted so provides.
SECTION 13.03 Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
By-Laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
By-Laws so that the By-Laws would be consistent with such action, shall be
given the same effect as though the By-Laws had been temporarily amended or
suspended so far, but only so far, as is necessary to permit the specific
action so taken or authorized.
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