AMENDED AND RESTATED
BYLAWS
OF
THE FAIRCHILD CORPORATION
(As Amended and Restated on November 21, 1996)
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. 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.
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 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 (i) approve or adopt or recommend to
the stockholders any action or matter expressly required by the
Delaware General Corporate Law to be submitted to stockholders for
approval, or (ii) adopt, amend or repeal any by-law 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.