AMENDED AND RESTATED
BYLAWS
OF
THE FAIRCHILD CORPORATION
(As Amended and Restated on September 14, 1995)
ARTICLE I
Offices
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such
other places both within and without the State of Delaware as
the board of directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. All meetings of the stockholders for the
election of directors shall be held in the City of Cleveland,
State of Ohio, at such place as may be fixed from time to time
by the board of directors, or at such other place either
within or without the State of Delaware as shall be designated
from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without
the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meeting of stockholders, commencing
with the year 1972, shall be held on the third Thursday of
November, if not a legal holiday, and if a legal holiday, then
on the next secular day following, at 2:00 P.M., EST, or at
such other date and time as shall be designated from time to
time by the board of directors and stated in the notice of the
meeting, at which the stockholders shall elect, by a plurality
vote and by written ballot, a board of directors, and transact
such other business as may properly be brought before the
meeting.
Section 3. Written notice of the annual meeting stating
the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten
or more than sixty days before the date of the meeting.
Section 4. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten
days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or
by the certificate of incorporation, may be called by the
chairman of the board or president, and shall be called by the
chairman of the board, president or secretary at the request
in writing of a majority of the board of directors, or at the
request in writing of stockholders owning shares representing
a majority of the votes entitled to be cast at such meeting.
Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating
the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not
less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the
notice.
Section 8. The holders of issued and outstanding stock
present in person or represented by proxy constituting a
majority of the votes entitled to be cast at a meeting of
stockholders shall constitute a quorum and the votes that are
necessary for the transaction of any business, except as
otherwise required by statute or the certificate of
incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall by a majority of votes cast have
power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall
be present or represented. 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. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled
to vote at the meeting.
Section 9. The affirmative vote of a majority of votes
entitled to be cast at a meeting of stockholders by holders of
shares present in person or represented by proxy at the
meeting shall be the act of the stockholders, except as
otherwise required by statute or the certificate of
incorporation. Where a separate vote by class or series of a
class is required, the affirmative vote of a majority of votes
entitled to be cast on such matter at a meeting of
stockholders by holders of shares present in person or
represented by proxy at the meeting shall be the act of the
stockholders of such class or series, except as otherwise
required by statute or the certificate of incorporation.
Section 10. Unless otherwise provided in the certificate
of incorporation, any action required to be taken at any
annual or special meeting of stockholders of the corporation,
or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent 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 stockholders
who have not consented in writing.
ARTICLE III
Directors
Section 1. The number of directors which shall
constitute the whole board shall be not less than three nor
more than fifteen. The first board shall consist of seven
directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting
of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies and newly created directorships
resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in
office, though less than a quorum, or by a sole remaining
director, 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. If there
are no directors in office, then an election of directors may
be held in the manner provided by statute. 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 stockholder or stockholders 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. The business of the corporation shall be
managed by its board of directors, which may exercise all such
powers of the corporation and do all such lawful acts and
things as are not by statute or by the certificate of
incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Meetings of the Board of Directors
Section 4. The board of directors of the corporation may
hold meetings, both regular and special, either within or
without the State of Delaware.
Section 5. The first meeting of each newly elected board
of directors shall be held at such time and place as shall be
fixed by the vote of the stockholders at the annual meeting
and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting,
provided a quorum shall be present. In the event of the
failure of the stockholders to fix the time or place of such
first meeting of the newly elected board of directors, or in
the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the board of
directors, or as shall be specified in a written waiver signed
by all of the directors.
Section 6. Regular meetings of the board of directors
may be held without notice at such time and at such place as
shall from time to time be determined by the board.
Section 7. Special meetings of the board may be called
by the chairman of the board or the president on at least 24
hours' notice to each director, either personally or by mail,
by telegram or by telephone; special meetings shall be called
by the chairman of the board, president or secretary in like
manner and on like notice on the written request of two
directors. Notice of any such meeting need not be given to
any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such
meeting without protesting before or at its commencement the
lack of notice to him. A notice or waiver of notice of any
regular or special meeting of the board need not state the
purpose of or the business to be transacted at such meeting.
Section 8. At all meetings of the board, one-third of
the total number of directors then serving shall constitute a
quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which
there is a quorum shall be the act of the board of directors,
except as may be otherwise specifically provided by statute or
by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors
present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until
a quorum shall be present.
Section 9. Unless otherwise restricted by the
certificate of incorporation or these By-laws, any action
required or permitted to be taken at any meeting of the board
of directors or of any committee thereof may be taken without
a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the
board or committee.
Executive Committee
Section 10. The corporation shall have an executive
committee (the "Executive Committee") consisting of not less
than three members of the board of directors of the
corporation. The members of the Executive Committee shall be
designated by the board of directors by a resolution passed by
a majority of the whole board. The Executive Committee shall
have authority to exercise, by a meeting or by the unanimous
written consent of its members, during intervals between
meetings of the board of directors, all the powers and
authority of such board in the management and business and
affairs of the corporation, however conferred. The chairman
of the board of the corporation shall call, and cause to be
held, at least six meetings of the Executive Committee during
each full fiscal year of the corporation.
Audit Committee
Section 11. The corporation shall have an audit
committee (the "Audit Committee") consisting of not less than
three non-management members of the board of directors whose
association with the corporation, in the opinion of the board
of directors, will not be inconsistent with the exercise of
judgment independent of management. The members of the Audit
Committee shall be designated by the board of directors by a
resolution passed by a majority of the whole board.
Section 12. The purpose of the Audit Committee shall be
to assist the board of directors in discharging its duties
relating to the internal control, accounting and reporting
practices of the corporation and to establish and maintain
communication between the board of directors and the
independent auditors of the corporation. Without limiting the
generality of the foregoing, the Audit Committee shall have
the responsibility of securing and reviewing such financial
information as it may deem necessary to enable the board of
directors to confirm that the corporation has devised and is
maintaining a system of internal accounting controls
sufficient to provide reasonable assurances that (1)
transactions are being executed in accordance with
management's authorizations, (2) transactions are being
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles, (3) access to assets is being permitted only when
authorized and (4) recorded accountability for assets is being
compared with existing assets at reasonable intervals and
appropriate action is being taken with respect to any
differences.
Section 13. In carrying out its duties, the Audit
Committee shall have the authority (which authority may be
exercised by a meeting or by the unanimous written consent of
all of the members of the Committee) to:
a. make recommendations to the board of directors with
respect to the engagement or discharge of the independent
auditors of the corporation;
b. review the corporation's internal auditing
procedures, and coordinate the efforts of the internal and
independent auditors of the corporation;
c. review with the independent auditors of the
corporation the scope of their examination;
d. upon the completion of the annual audit, review the
audit process with the corporation's independent auditors to
ascertain that they (1) received the full cooperation of
management, (2) were fully satisfied with the disclosure and
content of the financial statements and (3) are not certifying
the statements under management pressure, it being the
responsibility of the Audit Committee to review the audit
process and not the financial statements themselves;
e. review any recommendations of the corporation's
independent auditors regarding internal controls and other
management matters;
f. consider the possible effect of any non-audit
services performed by the corporation's independent auditors
on the independence of such auditors;
g. approve the audit and all non-audit services
performed by the corporation's independent auditors and make
recommendations to the board of directors with respect to the
compensation for such services; and
h. receive copies of internal audit reports from the
internal auditing staff and, if deemed appropriate, meet with
the internal auditing staff and review with them any such
reports.
Other Committees of Directors
Section 14. In addition to the Executive Committee and
the Audit Committee, the board of directors may, by resolution
passed by a majority of the whole board, designate one or more
other committees, each such other committee to consist of one
or more of the directors of the corporation. Any such other
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. Such other committee or committees shall have
such name or names as may be determined from time to time by
resolution adopted by the board of directors.
General Provisions and Restrictions
Applicable to All Committees of Directors
Section 15. With respect to any committee of the board
of directors (including, but not by way of limitation, the
Executive Committee and the Audit Committee), the board of
directors may designate one or more directors meeting the
qualifications, if any, specified for membership on such
committee as alternative members of such committee, who may
replace any absent or disqualified member at a meeting of such
committee. In the event of the absence or disqualification of
a member of a committee, and in the event no director has been
designated as an alternative member thereof, the member or
members of such committee 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 meeting the qualifications, if any, specified for
membership on such committee to act at the meeting in the
place of any such absent or disqualified member.
Section 16. Notwithstanding anything contained in these
By-laws to the contrary, neither the Executive Committee, the
Audit Committee nor any other committee of the board of
directors shall have any power or authority to amend the
certificate of incorporation, adopt an agreement of merger or
consolidation, recommend to the stockholders the sale, lease
or exchange of all or substantially all of the corporation's
property or assets, recommend to the stockholders a
dissolution of the corporation or a revocation of a
dissolution, or amend the By-laws of the corporation. If the
resolution establishing a particular committee so provides,
such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. The board of
directors may (but shall not be obligated to) designate one
member of any committee (including the Executive Committee and
the Audit Committee) as its chairman. The duties and
responsibilities of the members of any committee of the board
of directors shall be in addition to those duties set forth
for a member of the board of directors of the corporation.
Compensation of Directors
Section 17. Unless otherwise restricted by the
certificate of incorporation, the board of directors shall
have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at
each meeting of the board of directors and may be paid a fixed
sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any
other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like
compensation for attending committee meetings.
ARTICLE IV
Notices
Section 1. Whenever, under the provisions of the
statutes, of the certificate of incorporation, of any
certificate duly filed in the State of Delaware pursuant to
Section 151 of the Delaware General Corporation Law or of
these By-laws, notice is required to be given to any director
or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder at his address as it
appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given
at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by
telegram or telephone.
Section 2. Whenever any notice is required to be given
under the provisions of the statutes, of the certificate of
incorporation, of any certificate duly filed in the State of
Delaware pursuant to Section 151 of the Delaware General
Corporation Law or of these By-laws, a waiver thereof in
writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
Officers
Section 1. The officers of the corporation shall be
chosen by the board of directors and shall be a chairman of
the board, a president, one or more vice-presidents (one or
more of whom may be designated Executive Vice-President or
Senior Vice-President), a secretary and a treasurer. The
board of directors may also choose a controller and one or
more assistant secretaries and assistant treasurers. Any
number of offices may be held by the same person, unless the
certificate of incorporation or these By-laws otherwise
provide.
Section 2. The board of directors at its first meeting
after each annual meeting of stockholders shall choose a
chairman of the board, a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to
time by the board.
Section 4. The salaries of all officers and agents of
the corporation shall be fixed by the board of directors,
provided that the board may delegate to the chairman of the
board or the president the power to fix from time to time the
compensation of such officers and agents as the board shall
designate. No officer shall be prevented from receiving such
salary because he is also a director.
Section 5. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any
officer elected or appointed by the board of directors may be
removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office
of the corporation shall be filled by the board of directors.
The Chairman of the Board
Section 6. The chairman of the board shall be the chief
executive officer of the corporation, shall preside at all
meetings of the stockholders and the board of directors, shall
have general and active management of the business of the
corporation and shall see that all orders and resolutions of
the board of directors are carried into effect. He shall
execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other
officer or agent of the corporation.
The President
Section 7. The president shall be the chief operating officer
of the corporation, and shall have the duties and
responsibilities as assigned by the chairman and chief
executive officer or the board of directors. He shall preside
at any meetings of the stockholders and of the board of
directors if the chairman of the board is unavailable. He may
sign, with the secretary or treasurer or any other proper
officer thereunto authorized by the board of directors,
certificates for shares of the corporation, any deeds,
mortgages, bonds, contracts or other instruments which the
board of directors has authorized to be executed, except in
cases where the signing and execution thereof shall be
expressly delegated by the board of directors or by these By-
laws to some other officer or agent of the corporation, or
shall be required by law to be otherwise signed or executed;
and in general, shall perform all duties incident to the
office of the president and such other duties as may be
prescribed by the board of directors from time to time.
The Vice-Presidents
Section 8. In the absence of the president or in the
event of his inability or refusal to act, the vice-president
(or in the event there be more than one vice-president, the
vice-presidents in the order designated, or in the absence of
any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions
upon the president. The vice-presidents shall perform such
other duties and have such other powers as the board of
directors may from time to time prescribe.
The Secretary and Assistant Secretary
Section 9. The secretary shall attend all meetings of
the board of directors and all meetings of the stockholders
and record all the proceedings of the meetings of the
corporation and of the board of directors in a book to be kept
for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to
be given, notice of all meetings of the stockholders and
special meetings of the board of directors, and shall perform
such other duties as may be prescribed by the board of
directors, chairman of the board or president, under whose
supervision he shall be. He shall have custody of the
corporate seal and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it
and, when so affixed, it may be attested by his signature or
by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to
affix the corporate seal and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more
than one, the assistant secretaries in the order determined by
the board of directors (or if there be no such determination,
then in the order of their election), shall, in the absence of
the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time
prescribe.
The Treasurer and Assistant Treasurers
Section 11. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the
board of directors.
Section 12. He shall disburse the funds of the
corporation as may be ordered by the board of directors,
taking proper vouchers for such disbursements, and shall
render to the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of
the corporation.
Section 13. If required by the board of directors, he
shall give the corporation a bond (which shall be renewed
every six years) in such sum and with such surety or sureties
as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the
corporation.
Section 14. The assistant treasurer, or if there shall
be more than one, the assistant treasurers in the order
determined by the board of directors (or if there be no such
determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability
or refusal to act, perform the duties and exercise the powers
of the treasurer and shall perform such other duties and have
such other powers as the board of directors may from time to
time prescribe.
The Controller
Section 15. The controller shall be the chief accounting
officer of the corporation and shall perform the duties and
exercise the powers generally incident to such position and
such other duties and powers as the board of directors may
from time to time prescribe.
ARTICLE VI
Certificates of Stock
Section 1. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by, or in the
name of the corporation by, the chairman or vice-chairman of
the board of directors, or the president or a vice-president
and the treasurer or an assistant treasurer, or the secretary
or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation. If the
corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers,
designations, preferences and relative, participating,
optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent
such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General
Corporation Law, in lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate which
the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish
without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating,
optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Where a certificate is countersigned (1) by
a transfer agent other than the corporation or its employee,
or (2) by a registrar other than the corporation or its
employee, any other signature on the certificate may be
facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued,
it may be issued by the corporation with the same effect as if
he were such officer, transfer agent or registrar at the date
of the issue.
Lost Certificates
Section 3. The board of directors may direct a new
certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate
or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost,
stolen or destroyed.
Transfer of Stock
Section 4. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of
the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction upon its books.
Fixing Record Date
Section 5. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, 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
exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days
prior to any other action. 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.
Registered Stockholders
Section 6. The corporation shall be entitled to
recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a
person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
General Provisions
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the board of
directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for
dividends such sum or sums as the directors from time to time,
in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall
think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner
in which it was created.
Indemnification
Section 3.1. Right to Indemnification. The corporation
shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or
agent of the corporation or is or was serving at the request
of the corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with
respect to employee benefit plans, against all liability and
loss suffered and expenses reasonably incurred by such person.
The corporation shall be required to indemnify a person in
connection with a proceeding initiated by such person only if
the proceeding was authorized by the Board of Directors of the
corporation.
Section 3.2. Prepayment of Expenses. The corporation
shall pay the expenses (including, without limitation,
reasonable attorneys' fees) incurred in defending any
proceeding in advance of its final disposition, as they become
due; provided, however, that the payment of expenses incurred
by a claimant in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking
by the claimant to repay all amounts advanced if it should be
ultimately determined that the claimant is not entitled to be
indemnified under this Article VII, Section 3 or otherwise.
Section 3.3. Claims. Any claim for indemnification must
be made pursuant to a written request, including documentation
and information which is available to the claimant and is
reasonably necessary for the corporation to determine whether
and to what extent the claimant is entitled to
indemnification. If a claim for indemnification or payment of
expenses under this Article VII, Section 3 is not paid in full
within sixty days after a written claim therefor has been
received by the corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the corporation
shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of
expenses under applicable law.
Section 3.4. Non-Exclusivity of Rights. The rights
conferred on any person by this Article VII, Section 3 shall
not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the
stockholders or disinterested directors or otherwise.
Section 3.5. No Offsets. A claimant's right to
indemnification and prepayment of expenses pursuant to this
Article VII, Section 3 shall not be subject to any offset or
reduction for amounts due or claimed to be due to the
corporation from the claimant. The corporation may stop
paying expenses and otherwise stop indemnifying a claimant
with respect to any claim in which it has been ultimately
determined that the claimant is not entitled to be indemnified
under this Article VII, Section 3 or under applicable law; and
the claimant shall reimburse all amounts advanced by the
corporation on such claim, as per the undertaking executed by
the claimant under Section 3.2 above.
Section 3.6. Other Indemnification. The corporation's
obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust, enterprise or non-profit entity shall be reduced by any
amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust,
enterprise or non-profit enterprise.
Section 3.7. Amendment or Repeal. Any repeal or
modification of the foregoing provisions of this Article VII,
Section 3 shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Contracts and Loans
Section 4. Except as otherwise required by statute, the
certificate of incorporation or these Bylaws, any contracts or
other instruments may be executed and delivered in the name
and on behalf of the corporation by such officer or officers
(including any assistant officer) of the corporation as the
board may from time to time direct. Such authority may be
general or confined to specific instances. No loans shall be
contracted on behalf of the corporation, no pledge of its
credit shall be made and no evidences of indebtedness shall be
issued in its name unless authorized by a resolution of the
board of directors. Such authority may be general or confined
to specific instances.
Securities of Other Corporations
Section 5. Any shares or other securities of another
corporation owned by this corporation may be voted on behalf
of this corporation by the chairman of the board, the
president or any vice-president in accordance with proper
authorization of the board of directors. Unless otherwise
provided by resolution adopted by the board of directors, any
such officer may from time to time appoint an attorney or
attorneys or agent or agents of the corporation, in the name
and on behalf of the corporation, to cast the votes which the
corporation may be entitled to cast as the holder of stock or
other securities in any other corporation held by the
corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in
writing, in the name of the corporation as such holder, to any
action by such other corporation, and may instruct the person
or persons so appointed as to the manner of casting such votes
or giving such consent, and may execute or cause to be
executed in the name and on behalf of the corporation and
under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or
proper.
Banking
Section 6. 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 the board of directors may select. All checks
or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or
persons as the board of directors may from time to time
designate.
Fiscal Year
Section 7. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Annual Statement
Section 8. The board of directors shall present at each
annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear
statement of the business and condition of the corporation.
Seal
Section 9. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its
organization and the words "Corporate Seal, Delaware". The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
Amendments
Section 1. These Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the stockholders or
by the board of directors at any regular meeting of the
stockholders or of the board of directors or at any special
meeting of the stockholders or of the board of directors if
notice of such alteration, amendment, repeal or adoption of
new Bylaws be contained in the notice of such special meeting.