Exhibit C
BY-LAWS
OF
BUTLER NATIONAL CORPORATION
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of
stockholders shall be held on the 1st Tuesday of October of each
year, 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 directors by a
plurality vote to serve until the next annual meeting of the
stockholders and shall transact such other business as may
properly be brought before the meeting. The meeting may be
held either within or without the State of Delaware as may be
designated by the Board of Directors from time to time.
Section 1.2. Special Meetings. Special meetings of stockholders
may be called at any time by the Chairman of the Board, the
Vice Chairman of the Board, if any, the Chief Executive Officer,
the President or the Board of Directors, to be held at such date,
time and place either within or without the State of Delaware as
may be stated in the notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written
notice of the meeting shall be given which shall state the place,
date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
Unless otherwise provided by law, the written notice of any
meeting 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. If mailed, such notice shall be deemed to
be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders,
annual or special, may adjourn from time to time to reconvene at
the same or some other place, and notice need not be given of
any such 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. 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 1.5. Quorum. At each meeting of stockholders, except
where otherwise provided by law or the certificate of
incorporation or these by-laws, the holders of a 35%of the
outstanding shares of each class of stock entitled to vote at the
meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, two or more
classes or series of stock shall be considered a single class if the
holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum, the stockholders so
present may, by majority vote, adjourn the meeting from time to
time in the manner provided by Section 1.4 of these by-laws until
a quorum shall attend. Shares of its own capital stock belonging
on the record date for the meeting to the Corporation or to
another corporation, if a majority of the shares entitled to vote in
the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation to vote
stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his
absence by the Chief Executive Officer, President, or in their
absence by a Vice President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or
in the absence of such designation by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but
in his absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote at
any meeting of stockholders shall be entitled to one vote for each
share of stock held by him which has voting power upon the
matter in question. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and
voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with
the Secretary of the Corporation. Voting at meetings of
stockholders need not be by written ballot and need not be
conducted by inspectors unless the holders of a majority of the
outstanding shares of all classes of stock entitled to vote thereon
present in person or by proxy at such meeting shall so determine.
At all meetings of stockholders for the election of directors, a
plurality of the votes cast shall be sufficient to elect. All other
elections and questions shall, unless otherwise provided by law or
by the certificate of incorporation or these by-laws, be decided by
the vote of the holders of a majority of the outstanding shares of
all classes of stock entitled to vote thereon present in person or
by proxy at the meeting, provided that (except as otherwise
required by law or by the certificate of incorporation) the Board
of Directors may require a larger vote upon any election or
question.
Section 1.8. Fixing Date for Determination of Stockholders of
Record. 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. If no record date is
fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held;
(2) the record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting,
when no prior action by the Board is necessary, shall be the day
on which the first written consent is expressed; and (3) the record
date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board 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 may fix a new record date for
the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. The
Secretary 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 1.10. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the certificate of incorporation, any
action required by law to be taken at any annual or special
meeting of stockholders of the Corporation, or any action which
may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent 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 II
Board of Directors
Section 2.1. Powers; Number; Tenure. Except as otherwise
specifically provided by applicable statute, all powers of
management, direction and control of the Corporation shall be
vested in its Board of Directors.
The total number of directors of the Corporation which shall
initially constitute the whole Board of Directors of the
Corporation shall be 5. Thereafter, the minimum and maximum
number of directors shall be as set forth in the certificate of
incorporation. The Board of Directors shall have the power to
change the number of directors by resolution adopted by a
majority of the whole Board.
Section 2.2. Resignation; Removal; Vacancies. Any director
may resign at any time upon written notice to the Board of
Directors or to the Chief Executive Officer, President or the
Secretary of the Corporation. Such resignation shall take effect
at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to
make it effective.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the
State of Delaware and at such times as the Board may from time
to time determine, and if so determined, notice thereof need not
be given.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without
the State of Delaware whenever called by the Chairman of the
Board, or by the Vice Chairman of the Board, if any, by the
Chief Executive Officer, President or by any two directors.
Reasonable notice thereof shall be given by the person or persons
calling the meeting.
Section 2.5. Telephonic Meetings Permitted. Unless otherwise
restricted by the certificate of incorporation or these by-laws,
members of the Board of Directors, or any committee designated
by the Board, may participate in a meeting of the Board or of
such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all
meetings of the Board of Directors a majority of the total
number of directors shall constitute a quorum for the transaction
of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the
Board unless the certificate of incorporation or these by-laws
shall require a vote of a greater number. In case at any meeting
of the Board a quorum shall not be present, the members of the
Board present may adjourn the meeting from time to time until a
quorum shall attend.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairmen of the Board or in his
absence by the Vice Chairman of the Board, if any, or in his
absence by the Chief Executive Officer or President, or in their
absence by a chairman chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.8. Informal Action by Directors. 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 of such
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.
ARTICLE III
Committees
Section 3.1. 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 alternate 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 to act at the meeting in place of any such
absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, shall have and
may exercise all the powers and authority of the Board 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
power or authority in reference to amending the certificate of
incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the
Corporation or a revocation of dissolution, removing or
indemnifying directors or amending these by-laws; and, unless the
resolution expressly so provided, no such committee shall have
the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may
make, alter and repeal rules for the conduct of its business. In
the absence of a provision by the Board or a provision in the
rules of such committee to the contrary, a majority of the entire
authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of a
majority of the members present at a meeting at the time of such
vote if a quorum is then present shall be the act of such
committee, and in other respects each committee shall conduct its
business in the same manner as the Board conducts its business
pursuant to Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election; Qualification; Term of Office;
Resignation; Removal; Vacancies. As soon as practicable after
the annual meeting of stockholders in each year, the Board of
Directors shall elect a President and a Secretary, and it may, if it
so determines, elect from among its members Co-Chairmen of
the Board and a Vice Chairman of the Board. The Board may
also elect a Chief Executive Officer, one or more Vice Presidents,
one or more Assistant Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers
and may give any of them such further designations or alternate
titles as it considers desirable. Each such officer shall hold office
until the first meeting of the Board after the annual meeting of
stockholders next succeeding his election, and until his successor
is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the
Board or to the Chairman, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it
effective. The Board may remove any officer with or without
cause at any time. Any such removal shall be without prejudice
to the
contractual rights of such officer, if any, with the Corporation, but
the election or appointment of an officer shall not of itself create
contractual rights. Any number of offices may be held by the
same person. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be
filled for the unexpired portion of the term by the Board at any
regular or special meeting.
Section 4.2. Powers and Duties of Executive Officers. The
officers of the Corporation shall have such powers and duties in
the management of the Corporation as may be prescribed by the
Board of Directors and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control
of the Board. The Board may require any officer, agent or
employee to give security for the faithful performance of his
duties.
ARTICLE V
Stock
Section 5.1. Certificates. 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, if any, or the Chief Executive Officer,
President or a Vice President, and by 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 such certificate is manually signed by one
officer or manually countersigned by a transfer agent or by a
registrar, any other signature on the certificate may be a
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 issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim
that may be made against it on account of the alleged loss, theft
or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal
which shall have the name of the Corporation inscribed thereon
and shall be in such form as may be approved from time to time
by the Board of Directors. The corporate seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Whenever notice is required to be
given by law or under any provision of the certificate of
incorporation or these by-laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice unless
so required by the certificate of incorporation or these by-laws.
Section 6.4. Indemnification of Directors, Officers, Employees
and Agents.
(a) Directors. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation, by reason of the
fact that he is or was a director of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgment,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the defense or settlement of
such action, suit or proceeding, including attorneys' fees, to the
full extent permitted by Delaware General Corporation Law, as
amended, Section 145.
(b) Officers, Employees and Agents. The Corporation may, at
the discretion of the Board of Directors, indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or contemplated action, suit, or proceeding,
whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation, by reason of the
fact that he is or was an 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, partnership, joint venture, trust or other enterprise,
against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the
defense or settlement of such action, suit or proceeding, including
attorneys' fees, to the full extent permitted by Delaware General
Corporation Law, as amended, Section 145.
(c) Expenses.
(i) The Corporation shall pay the director, or such person or
entity as the director may designate, on a continuing and current
basis and in any event not later than 10 business days following
receipt by the Corporation of the director's request for
reimbursement of all expenses, including attorneys fees, costs,
settlement, fines and judgment incurred by or levied upon the
director in connection with any action, suit or proceeding referred
to in Section 6.4, subsection (a).
(ii) To the extent that an officer, employee or agent of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to Section 6.4,
subsection (b) or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses actually and reasonably
incurred by such person in connection therewith, including
attorneys' fees.
(iii) Expenses incurred by a director or officer in defending a
civil or criminal action, suit, or proceeding may be paid by the
Corporation in advance of the final disposition of such action,
suit, or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it is
ultimately determined that the director or officer is not entitled
to be indemnified by the Corporation as authorized in these
Bylaws. Such expenses incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
(d) Board Authorization. Any indemnification of directors,
officers, employees or agents pursuant to this Section 6.4, unless
ordered by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that such
indemnification is proper in the circumstances because such
director, officer, employee or agent has met the applicable
standard of conduct set forth in Delaware General Corporation
Law, as amended, Section 145. Such determination shall be
made by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the action, suit, or
proceeding, or 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 opinion, or by the
stockholders.
(e) Notification and Defense of Claim. Promptly after receipt
by a director, officer, employee or agent of notice of the
commencement of any action, suit or proceeding, the director,
officer, employee
or agent will, if a claim in respect thereof is to be made, against
the Corporation, notify the Corporation of the commencement
thereof. The failure to promptly notify the Corporation will not
relieve the Corporation from any liability that it may have to the
director, officer, employee or agent hereunder, except to the
extent the Corporation is prejudiced in its defense of such claim
as a result of such failure. Unless otherwise requested by the
Board of Directors, written notification shall not be necessary if
the director, officer, employee or agent informs a majority of the
Board of Directors of the commencement of any such action, or,
independent of such notification by the director, officer,
employee or agent, a majority of the Board of Directors has
reason to believe such action has been initiated or threatened.
With respect to any such action, suit or proceeding as to which
the director, officer, employee or agent notified, or is deemed to
have notified, the Corporation of the commencement thereof; the
following shall apply:
(i) The Corporation will be entitled to participate therein at its
own expense;
(ii) Except as otherwise provided below, to the extent that it
may wish, the Corporation, jointly with any other indemnifying
party similarly notified, will be entitled to assume the defense
thereof with counsel reasonably satisfactory to the director,
officer, employee or agent. After notice from the Corporation to
the director, officer, employee or agent of its election so to
assume the defense thereof, the Corporation will not be liable to
the director, officer, employee or agent for any legal or other
expenses subsequently incurred by the director, officer, employee
or agent in connection with the defense thereof other than
reasonable costs of investigation or unless: (A) the employment
of separate counsel by the director, officer, employee or entity
has been authorized by the Corporation; (B) the director, officer,
employee or agent reasonably concludes that there may be a
conflict of interest between the Corporation and the director,
officer, employee or agent in the conduct of the defense of such
action and that such conflict may lead to exposure for the
director, officer, employee or agent and the director, officer,
employee or agent notifies the Corporation of such conclusion
and decision to employ separate counsel; or (C) the Corporation
fails to employ counsel to assume the defense of such action.
The Corporation shall not be entitled to assume the defense of
any action, suit or proceeding brought by or on behalf of the
Corporation or as to which the director, officer, employee or
agent reasonably makes the conclusion provided for in (B) above;
and
(iii) The Corporation shall not be liable to indemnify the
director, officer, employee or agent for any amount paid in
settlement of any action or claim effected without its written
consent. The Corporation shall not settle any action or claim in
any manner which would impose any penalty or limitation on the
director, officer, employee or agent without the written consent of
the director, officer, employee or agent. Neither the Corporation
nor the director, officer, employee or agent will unreasonably
withhold their consent to any proposed settlement.
(f) Not Exclusive. The indemnification and advancement of
expenses provided by this Section 6.4 shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled
under the Certificate of Incorporation, as amended from time to
time, or any agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office,
and 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 person.
(g) Further Indemnity. The Corporation shall have the power
to give any further indemnity, in addition to the indemnity
authorized or contemplated under this Section 6.4, to any person
who is or was a director, officer, employee or agent or to any
person who is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; provided, no
such indemnity shall indemnify any person from or on account of
such person's conduct which was finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct,
or if it is determined by a final judgment or other final
adjudication by a court of competent jurisdiction considering the
question of indemnification that such payment of indemnification
is or would be in violation of applicable law. The Corporation
may enter into indemnification agreements with each director and
officer of the Corporation whom the Board of Directors
authorizes by vote of a
majority of a quorum of disinterested directors.
(h) Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, of-
ficer, 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, partnership, joint venture, trust
or other enterprise against any liability asserted against him and
incurred by him in 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
Section 6.4. When, and if, the Corporation obtains such
insurance coverage, the Corporation shall not be required to
maintain such insurance coverage in effect; provided, however,
that the Corporation notifies the covered person in writing within
five business days of the making of the decision to not renew or
replace such insurance policy. The maintenance of such
insurance shall not diminish, relieve or replace the Corporation's
liability for indemnification under the provisions hereof. A claim
for reimbursement hereunder, shall not be denied on the basis
that such amount may or will be covered by such insurance
policy, if such payments from the insurance company will not be
made to the covered person within 10 business days of the claim
for reimbursement.
(i) Definitions. For the purpose of this Section 6.4, references
to "the Corporation" include all constituent corporations absorbed
in a consolidation or merger as well as the resulting or surviving
corporation, so that any person who is or was a director or officer
of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provisions of
this Section 6.4, with respect to the resulting or surviving
corporation as he would if he had served the resulting or
surviving corporation in the same capacity.
For purposes of this Section 6.4, the following definitions shall
apply
(i) The term "other enterprise" shall include employee benefit
plans.
(ii) The term "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan.
(iii) The term "serving at the request of the Corporation" shall
include any service as a director or officer of the Corporation
which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants,
or beneficiaries.
(iv) A person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the
corporation".
Section 6.5. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose, if: (1) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are
known to the Board 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; or
(2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified,
by the Board, a committee thereof or the stockholders. Common
or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or
of a committee which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its
stock ledger, books of account and minute books, may be kept
on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into
clearly legible form within a reasonable time. The Corporation
shall so convert any records so kept upon the request of any
person entitled to inspect the same.
Section 6.7. Amendment of By-Laws. The Bylaws of the
Corporation may from time to time be repealed, amended or
altered, or new Bylaws may be adopted, in either of the following
ways:
(i) By the vote of a majority of the stockholders entitled to
vote at any annual or special meeting thereof; and
(ii) By resolution adopted by a majority of the members of the
Board of Directors then in office; provided, however that the
power of the directors to suspend, repeal, amend or otherwise
alter the Bylaws or any portion thereof may be denied as to any
Bylaws or portion thereof enacted by the stockholders if at the
time of such enactment the stockholders shall so expressly
provide.