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Exhibit 3(b) - By-Laws, as amended through March 24, 1994
As Amended and Restated - March 24, 1994
BY-LAWS
OF
AVATAR HOLDINGS INC.
(a Delaware corporation)
________________________
ARTICLE I
Offices
SECTION 1. Registered Office. The registered
office shall be established and maintained at the office of
the United States Corporation Company, in the City of Dover,
in the County of Kent, in the State of Delaware, and said
corporation shall be the registered agent of this
Corporation in charge thereof.
SECTION 2. other offices. The Corporation may
have other offices, either within or without the State of
Delaware, at such place or places as the Board of Directors
may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. Annual Meeting. The annual meeting of
stockholders of the Corporation for the election of
Directors and for the transaction of such other business as
may come before the meeting shall be held in each year on
such business day and at such hour as shall be fixed by the
Board of Directors. If the annual meeting is not held at
the time so fixed, the Board of Directors shall cause the
meeting to be held as soon thereafter as convenient.
SECTION 2. Special Meetings. Special Meetings of
stockholders for any purpose or purposes, unless otherwise
prescribed by law or by the Certificate of Incorporation,
may be called at any time by the Chairman of the Board or by
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order of the Board of Directors or the Executive Committee
of the Board of Directors, and shall be called by the
Chairman of the Board, the President or the Secretary at the
request in writing of a stockholder or stockholders holding
of record at least twenty percent of all the Common Stock of
the Corporation then outstanding and entitled to vote.
Special meeting shall be called by means of a notice as
provided for in Section 4 of this Article II.
SECTION 3. Place of Meeting. Each meeting of
stockholders shall be held at such place, within or without
the State of Delaware, as shall be fixed by the Board of
Directors and specified in the notice or waiver of notice of
said meeting. If no designation is made, the place of the
meeting shall be the principal office of the Corporation in
the State of Florida.
SECTION 4. Notice of Meetings. Except as
otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, written notice of every
meeting of stockholders shall be given to each stockholder
of record entitled to vote at the meeting, not less than ten
nor more than sixty days prior to the date named for the
meeting (unless a greater period of notice is required by
law in a particular case), by delivering a written or
printed notice thereof to him personally, or by sending a
copy thereof, charges prepaid, through the mail or
transmitted by telex, telegraph or cable to his address
appearing on the books of the Corporation, or supplied by
him to the Corporation for the purpose of notice. If notice
is sent through the mail or transmitted by telex, telegraph
or cable, it shall be deemed to have been given to the
person entitled thereto when deposited in the United States
mail or with the appropriate office for transmission to such
person. Such notice shall specify 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. Notice
of any adjourned meeting of stockholders shall not be
required to be given, except when expressly required by law,
by the Certificate of Incorporation or by these By-Laws. As
provided in Article VIII of these By-Laws, any stockholder
may waive the requirements of notice provided for herein.
SECTION 5. Quorum. The holders of shares
entitling them to exercise a majority of the voting power of
the Corporation, present in person or by proxy at any
meeting of stockholders, shall constitute a quorum. Once a
quorum shall have been established, the stockholders present
at a duly organized meeting may continue to do business
until adjournment, notwithstanding the withdrawal of
sufficient stockholders to leave less than a quorum. If a
meeting cannot be organized because a quorum has not
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attended, those present may, except as otherwise provided by
law, adjourn the meeting to such time and place as they may
determine. If a meeting must be adjourned twice because of
the lack of a quorum, at the third such meeting of
stockholders and at all subsequent adjournments, if any, of
such meeting, the holders of shares entitling them to
exercise thirty-three and one-third percent of the voting
power of the Corporation, present in person or by proxy,
shall constitute a quorum for the transaction of all
business except as otherwise prohibited by law, by the
Certificate of Incorporation or by these By-Laws.
SECTION 6. Adjournments. At any annual or
special meeting, the holders of shares entitling them to
exercise a majority of the voting power which is present in
person or by proxy at such meeting, although less than a
quorum, may adjourn the meeting from time to time without
further notice (except as is otherwise required by law)
other than by announcement at the meeting at which such
adjournment is taken of the time and place of the adjourned
meeting. At any such adjourned meeting at which a quorum
shall be present, any business may be transacted which might
have been transacted at the original meeting.
SECTION 7. Voting. Each stockholder of record of
Common Stock shall be entitled at each meeting of
stockholders to one vote for each share of Common Stock
registered in his name on the books of the Corporation,
except as hereinafter stated for the election of Directors.
For all elections of Directors, each stockholder of record
of Common Stock shall be entitled to cast as many votes as
equals the number of Directors to be elected at such
election multiplied by the number of shares of Common Stock
owned by such stockholder on the record date. All such
votes may be cast for a single candidate or distributed in
any number among any two or more candidates. Directors
shall be elected by a plurality of the votes cast by the
stockholders present in person or by proxy. Except as
otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, all other matters shall
be determined by vote of at least a majority of the votes
which all stockholders present in person or by proxy at such
meeting are entitled to cast on such matter. Voting by
ballot shall not be required for the election of Directors
or for the transaction of any other corporate business
except as otherwise provided by law.
Notwithstanding the foregoing, pursuant to the
confirmed Trustees' Restated Amended Joint Plan of
Reorganization of the Corporation and certain of its
subsidiaries and orders of the Bankruptcy Court entered
thereunder and in furtherance thereof, the Exchange Agent
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for distributions of Common Stock of the Corporation and
other securities and cash pursuant to such Plan shall
exercise all voting rights and rights of consent, waiver and
election (but not dissenters' rights under applicable law)
in respect of all shares of Common Stock then held in escrow
by such Exchange Agent relating to certain disputed claims
under such Plan and all shares of Common Stock allocable to
the holders of old securities issued by the Corporation or
such subsidiaries who have not yet tendered such old
securities to the Exchange Agent through the date of
exercise of such rights. Such rights shall be exercised by
the Exchange Agent in the same proportions as the voting of
all other outstanding shares of Common Stock of the
Corporation which are voted on any matter presented to the
stockholders of the Corporation. All shares of Common Stock
held in escrow by such Exchange Agent in respect of disputed
claims under such Plan and all shares of Common Stock
allocable to the holders of old securities who have not yet
tendered such old securities shall be included for purposes
of determining a quorum of stockholders of the Corporation.
SECTION 8. Organization. At every meeting of
stockholders, the Chairman of the Board or, in his absence,
the President or, in the absence of either of such officers,
a chairman chosen by a majority vote of stockholders present
in person or by proxy and entitled to vote thereat, shall
act as chairman of the meeting. The Secretary, or in his
absence an Assistant Secretary, shall act as secretary at
all meetings of stockholders. In the absence of the
Secretary or an Assistant Secretary, the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
SECTION 9. List of Stockholders. It shall be the
duty of the Secretary or other officer of the Corporation
who shall have charge of its stock ledger, either directly
or through another officer of the Corporation designated by
him or through a transfer agent or transfer clerk appointed
by the Board of Directors, to prepare, at least ten days
before every meeting of stockholders for the election of
Directors of the Corporation, a complete list of
stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each
stockholder and number of shares registered in the name of
each stockholder. For said ten days such list shall be
open, at the place where said meeting is to be held or at
another place within the city where the meeting is to be
held if such other place is specified in the notice of the
meeting, to the examination of any stockholder for any
purpose germane to the meeting, and shall be produced and
kept at the time and place of said meeting during the whole
time thereof and subject to the inspection of any
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stockholder who shall be present thereat. The original or
duplicate stock ledger shall be the only evidence as to who
are the stockholders entitled to examine such list or the
books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
SECTION 10. Business and Order of Business. At
each meeting of stockholders such business may be transacted
as may properly be brought before such meeting, whether or
not such business is stated in the notice of such meeting or
in a waiver of notice thereof, except as otherwise expressly
provided by law, by the Certificate of Incorporation or by
these By-Laws. The order of business at all meetings of
stockholders shall be as determined by the chairman of the
meeting.
SECTION 11. Inspectors of Election. In advance
of any meeting of stockholders, the Board of Directors may
appoint one or more Inspector(s) of Election, who need not
be stockholders, to act at such meeting or any adjournment
or adjournments thereof. If Inspector(s) of Election are
not so appointed, the chairman of any such meeting may make
such appointment at the meeting. No person who is a
candidate for office shall act as an Inspector. In case any
person appointed as an Inspector fails to appear or fails or
refuses to act, the vacancy may be filled by appointment
made by the Board of Directors in advance of the convening
of the meeting, or at the meeting by the person acting as
chairman. Each Inspector of Election so appointed shall
first subscribe an oath or affirmation faithfully to perform
the duties of an Inspector of Election at such meeting
impartially, in good faith, to the best of his ability, and
as expeditiously as is practical. The Inspector(s) of
Election shall determine the number of shares outstanding
and the voting power of each, the shares represented at the
meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes or ballots,
hear and determine all challenges and questions in any way
arising in connection with the right to vote, count and
tabulate all votes, determine the result, and do such acts
as may be proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of
the meeting, the Inspector(s) of Election shall make a
report in writing of any challenge or question or matter
determined by them, and execute a certificate of any fact
found by them.
SECTION 12. Proxies. Every stockholder entitled
to vote at a meeting of stockholders or to express consent
or dissent without a meeting may authorize another person or
persons (who need not be a stockholder) to act for him by
proxy. Every proxy must be signed by the stockholder or his
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attorney-in-fact. No proxy shall be valid after the
expiration of three years from the date thereof unless
otherwise provided in the proxy. The authority of the
holder of a proxy to act shall not be revoked by the
incompetence or death of the stockholder who executed the
proxy unless, before the authority is exercised, written
notice of an adjudication of such incompetence or of such
death is received by the corporate officer responsible for
maintaining the list of stockholders.
SECTION 13. Consent of Stockholders in Lieu of
Meeting. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in
connection with any corporate action, the meeting and vote
of stockholders may be dispensed with and the action 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 voting. 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
Board of Directors
SECTION 1. General Powers. The business and
affairs of the Corporation shall be managed by the Board of
Directors.
SECTION 2. Number, Qualification and Term of
Office. The Board of Directors shall consist of no less
than eight nor more than fifteen members as may be fixed
from time to time by resolution of the Board. As used in
these By-Laws, "whole Board of Directors" means the total
number of Directors which the Corporation would have if
there were no vacancies. Directors need not be stockholders
of the Corporation. Except as provided in Section 3 of this
Article III, Directors shall be elected by the stockholders.
Each Director shall hold office until the annual meeting of
stockholders next following his election and until his
successor shall be elected and shall qualify, or until such
Director's earlier death, resignation or removal in the
manner hereinafter provided.
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SECTION 3. Vacancies. Vacancies in the Board of
Directors, including vacancies resulting from an increase in
the number of Directors, shall be filled by a majority of
the remaining members of the Board (although less than a
quorum), and each person so elected shall hold office until
the next election of Directors by stockholders and until his
successor shall be elected and shall qualify, or until such
Director's earlier death, resignation or removal in the
manner hereinafter provided.
SECTION 4. Place of Meeting. The Board of
Directors may hold its meetings at such place or places
within or without the State of Delaware as a majority of the
Directors may from time to time appoint, or as may be
designated in the notice calling the meeting.
SECTION 5. Organization Meeting. As soon as
practicable after each annual election of Directors by the
stockholders, the Board of Directors shall meet for the
purpose of organization, the election of the Audit Committee
of the Board of Directors, the Executive Committee of the
Board of Directors, the Chairman of the Board and the
Chairman of the Executive Committee and the transaction of
other business. If held on the same day as the annual
meeting of stockholders, notice of such organization meeting
of the Board of Directors need not be given. If the
organization meeting is held on any other day, notice of
such meeting shall be given as hereinafter provided for
regular and special meetings of the Board of Directors.
SECTION 6. Regular and Special Meetings. Regular
meetings of the Board of Directors shall be held at such
times as the Board of Directors shall from time to time by
resolution determine. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of
the Board, the President or any four Directors.
SECTION 7. Notice. Written notice of each
regular or special meeting of the Board of Directors shall
be given by the Secretary to each Director at least three
days prior to the day named for the meeting. Notice of each
such meeting may be given to a Director, either personally
or by sending a copy thereof, charges prepaid, through the
mail, or transmitted by telex, telegraph or cable to his
address appearing on the books of the Corporation or
supplied by him to the Corporation for the purpose of
notice. If notice is sent by mail or transmitted by telex,
telegraph or cable, it shall be deemed to have been given
when deposited in the United States mail or with the
appropriate office for transmission to such person. Such
notice shall specify the place, day and hour of the meeting,
and notice of a special meeting shall include a general
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statement of the purpose for which the meeting is called.
When a meeting is adjourned, it shall not be necessary to
give any notice of the adjourned meeting or of the business
to be transacted at such adjourned meeting, other than by
announcement at the meeting at which such adjournment is
taken. As provided in Article VIII of these By-Laws, any
Director may waive the notice requirements provided for
herein.
SECTION 8. Quorum and Manner of Acting. A
majority of the whole Board of Directors shall be necessary
to constitute a quorum for the transaction of business and
the vote of a majority of the Directors participating in a
meeting at which a quorum is present or participating shall
be the act of the Board of Directors.
SECTION 9. Organization. At each meeting of the
Board of Directors, the Chairman of the Board, or in his
absence, a Director chosen by a majority of the Directors
present, shall act as chairman of the meeting. The
Secretary, or in his absence any person appointed by the
chairman of the meeting, shall act as secretary of the
meeting.
SECTION 10. Business and Order of Business. At
each meeting of the Board of Directors such business may be
transacted as may properly be brought before the meeting,
whether or not such business is stated in the notice of such
meeting or in a waiver of notice thereof, except as
otherwise expressly provided by law, by the Certificate of
Incorporation or by these By-Laws. At all meetings of the
Board of Directors business shall be transacted in the order
determined by the chairman of the meeting subject to the
approval of the Board.
SECTION 11. Action by Consent. Any action which
may be taken by the Board of Directors or by any Committee
thereof may be taken without a meeting, if a consent or
consents in writing setting forth the action so taken shall
be signed by all of the Directors or members of a Committee,
respectively, and shall be filed with the Secretary of the
Corporation.
SECTION 12. Constructive Presence at a Meeting.
Any member of the Board of Directors or of any Committee
thereof shall be deemed present at a meeting of such Board
or Committee if a conference telephone or similar
communication equipment is used, by means of which all
persons participating in the meeting can hear each other.
SECTION 13. Interested Directors; Quorum. No
contract or transaction between the Corporation and one or
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more of the Directors or officers of the Corporation, or
between the Corporation and any other Corporation,
partnership, association, or other organization in which one
or more of the Directors or officers of the Corporation are
directors or officers, or have a financial interest, shall
be void or voidable solely for such reason, or solely
because such 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 (i) the material facts as to
his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of
Directors or the Committee and the Board of Directors 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 (ii) 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 (iii) the contract or transaction is fair
as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a Committee
thereof, or the stockholders.
Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the
Board of Directors or of a Committee which authorizes a
contract or transaction specified in this section.
SECTION 14. Resignations. Any Director may
resign at any time upon written notice to the Secretary of
the Corporation. Such resignation shall take effect at the
time specified therein, or, if no time be so specified, upon
receipt by the Secretary. The acceptance of a resignation
shall not be necessary to make it effective.
SECTION 15. Removal of Directors. Any Director
or the entire Board of Directors may be removed, with or
without cause, by the vote of a majority of the outstanding
shares then entitled to vote at an election of Directors,
except if less than the entire Board of Directors is to be
removed, no Director may be removed without cause if the
votes cast against his removal would be sufficient to elect
him if then cumulatively voted at an election of the entire
Board of Directors.
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ARTICLE IV
Committees of the Board
SECTION 1. Executive Committee. At the
organization meeting following the annual meeting of
stockholders, the Board of Directors shall, by resolution
adopted by a majority of the whole Board of Directors,
designate an Executive Committee consisting of the Chairman
of the Board, the Chairman of the Executive Committee and
not less than two other directors. Except as hereinafter
set forth, the Executive Committee shall have and may
exercise all the 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. All acts done and power
conferred by the Executive Committee shall be deemed to be,
and may be certified as being, done or conferred under
authority of the Board of Directors. Notwithstanding the
foregoing, the Executive Committee shall not have the power
or authority of the Board of Directors 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 a dissolution, amending these
By-Laws, declaring a dividend or authorizing the issuance of
stock. Any member of the Executive Committee may be removed
at any time, and any vacancy on the Executive Committee may
be filled, by the vote of a majority of the whole Board of
Directors.
SECTION 2. Meetings of Executive Committee.
Meetings of the Executive Committee shall be held whenever
called by the Chairman of the Board or the Chairman of the
Executive Committee. Notice of each meeting of the
Executive Committee shall be given personally, in writing or
by telephone to each member of the Executive Committee at
his residence or usual place of business at least
twenty-four hours in advance of the meeting. Such notice
shall state the time and place of the meeting, but need not
state the purpose or purposes thereof. As provided in
Article VIII of these By-Laws, any member of the Executive
Committee may waive the notice requirements provided for
herein. The Executive Committee shall adopt its own rules
of procedure not inconsistent with any rules for committees
set forth in these By-Laws, and it shall keep a record of
its proceedings and report them to the Board of Directors at
the next meeting thereof after each meeting of the Executive
Committee. All actions taken by the Executive Committee
shall be subject to revision or alteration by the Board of
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Directors, provided, however, that third parties shall not
be prejudiced by any such revision or alteration.
SECTION 3. Quorum of and Manner of Acting by
Executive Committee. A majority of the Executive Committee
shall constitute a quorum for the transaction of business,
and the vote of a majority of those participating at a
meeting thereof at which a quorum is present or
participating shall be the act of the Executive Committee.
SECTION 4. Audit Committee. The Board of
Directors shall by resolution designate an Audit Committee
consisting of a Chairman and not less than two other
Directors. No member of the Audit Committee shall be an
officer or employee of the Corporation. The Audit Committee
shall by majority vote of its members adopt its own rules of
procedure not inconsistent with any rules for committees set
forth in these By-Laws and fix the time and place of its
meetings, unless the Board of Directors shall otherwise
provide. The Audit Committee shall recommend to the Board
of Directors, subject to approval by the stockholders of the
Corporation, the appointment of the independent auditors of
the Corporation; review with the independent auditors their
report and any management letter and reports to the Board of
Directors with respect thereto; review with the independent
auditors the Corporation's accounting policies and
procedures as well as its internal controls and internal
auditing procedures; determine whether there are any
conflicts of interest in financial or business matters
between the Corporation and any of its officers or
employees; review the recommendations of the independent
auditors; review the aggregate fee for audit and non-audit
services of the independent auditors and consider the
possible effect of such services on the independence of the
auditors; and perform such other tasks as are assigned to it
from time to time by the Board of Directors. The Board of
Directors shall have power to change the number of members
or the personnel of the Audit Committee at any time and to
fill vacancies. The Audit Committee shall keep minutes of
its acts and proceedings.
SECTION 5. Other Committees. The Board of
Directors may from time to time by resolution create such
other committee or committees of Directors, officers,
employees or other persons designated by it for the purpose
of advising the Board, the Executive Committee and the
officers and employees of the Corporation with respect to
such matters as the Board shall deem appropriate and with
such functions, powers and authority as the Board shall by
resolution prescribe; provided, however,that no such other
committee shall exercise any of the powers or authority of
the Board of Directors in the management of the business and
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affairs of the Corporation or have power to authorize the
seal of the Corporation to be affixed to papers which may
require it, unless such other committee shall be created by
resolution passed by a majority of the whole Board of
Directors and shall be so authorized by such resolution, and
provided further, that no committee shall exercise any of
the powers or authority of the Board of Directors that are
not permitted by law. A majority of all the members of any
such other committee may adopt its own rules of procedure
not inconsistent with any rules for committees set forth in
these By-Laws and fix the time and place of its meetings,
unless the Board of Directors shall otherwise provide. The
Board of Directors shall have power to change the number of
members or the personnel of any such other committee at any
time, to fill vacancies, and to discharge any such other
committee, either with or without cause, at any time. Each
such committee shall keep minutes of its acts and
proceedings.
SECTION 6. Compensation. Members of any
committee contemplated by these By-Laws shall receive such
compensation, fees and allowances, if any, for their
services as shall be fixed by resolution of the Board of
Directors. Nothing herein contained shall be construed so
as to preclude any member of any such committee from serving
the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE V
Officers
SECTION 1. Number. The officers of the
Corporation shall be a Chairman of the Board, a President, a
Chairman of the Executive Committee, one or more Vice
Presidents (any one or more of whom the Board of Directors
or the Executive Committee may designate Executive Vice
President or Senior Vice President or similar title), a
Secretary and Treasurer. Any two or more offices may be
held by the same person. It shall not be necessary for
officers (except for the Chairman of the Board and the
Chairman of the Executive Committee) to be Directors.
SECTION 2. Election, Term of Office and
Qualification. Except in the case of officers appointed in
accordance with the provisions of Section 3 of this Article
V, officers shall be elected annually by the Board of
Directors and each officer shall hold office until his
successor shall be elected and shall qualify, or until the
officer's earlier death, resignation or removal in the
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manner hereinafter provided.
SECTION 3. Other Officers. The Corporation may
have such other officers and agents as may be deemed
necessary by the Board of Directors or the Executive
Committee. Such other officers and agents shall be
appointed in such manner, have such duties and hold their
offices for such terms as may be determined by the Board of
Directors or the Executive Committee. The Board of
Directors or the Executive Committee may delegate to any
principal officer the power to appoint or remove any such
other officers or agents.
SECTION 4. Removal. Any officer or agent elected
or appointed by the Board of Directors or the Executive
Committee may be removed by the Board of Directors or the
Executive Committee whenever in its judgment the best
interests of the Corporation will be served thereby, but
such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
SECTION 5. Vacancies. A vacancy in any office
because of death, resignation, removal or any other cause
shall be filled for the unexpired portion of the term in the
manner prescribed in these By-Laws for election or
appointment to such office.
SECTION 6. The Chairman of the Board. The
Chairman of the Board shall preside at all meetings of the
Board of Directors and of stockholders. In the absence of
the Chairman of the Executive Committee, or if there be no
Chairman of the Executive Committee, the Chairman of the
Board shall preside at meetings of the Executive Committee
and shall exercise all of the powers and discharge all of
the duties of the Chairman of the Executive Committee. The
Chairman of the Board shall have power to sign all
certificates, contracts, obligations and other instruments
of whatever character on behalf of the Corporation. The
Chairman of the Board shall have and perform such other
duties and may exercise such other powers as from time to
time may be assigned to him by these By-Laws, the Board of
Directors or the Executive Committee.
SECTION 7. The President. Subject to the control
of the Board of Directors, the Executive Committee and the
Chairman of the Board, the President shall be the chief
executive officer of the Corporation and, unless and until
the Board of Directors shall determine otherwise, the
President also shall be the chief operating officer of the
Corporation. He shall transmit or cause to be transmitted
necessary instructions and advice to all officers and all
other proper persons and shall be the proper officer of the
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Corporation to whom problems shall be transmitted for
attention. The President shall have power to sign all
certificates, contracts, obligations and other instruments
of whatever character on behalf of the Corporation. He
shall perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these
By-Laws, the Board of Directors, the Executive Committee or
the Chairman of the Board.
SECTION 8. The Chairman of the Executive
Committee. The Chairman of the Executive Committee shall
preside at all meetings of the Executive Committee. The
Chairman of the Executive Committee shall have power to sign
all certificates, contracts, obligations and other
instruments of whatever character on behalf of the
Corporation. He shall perform such other duties and may
exercise such other powers as may from time to time be
assigned to him by these By-Laws, the Board of Directors, or
the Executive Committee.
SECTION 9. The Vice Presidents. Each Vice
President shall perform such duties and may exercise such
powers as from time to time may be assigned to him by these
By-Laws, the Board of Directors, the Executive Committee,
the Chairman of the Board, or the President. Each Vice
President shall have power to sign all certificates,
contracts, obligations and other instruments of whatever
character on behalf of the Corporation.
SECTION 10. The Secretary. The Secretary shall
record or cause to be recorded in books provided for that
purpose the minutes of the meetings of the stockholders, the
Board of Directors and the Executive Committee; shall see
that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law; shall be
custodian of such corporate records as the Board of
Directors may direct and of the seal of the Corporation and
may affix the same to any instrument requiring it and, when
so affixed, it shall be attested by his signature or by the
signature of an Assistant Secretary; may sign with the
Chairman of the Board, the President or any Vice President
all authorized contracts, obligations or instruments; shall
see that the books, reports, statements, certificates and
all other documents and records required by law, by the
Certificate of Incorporation or by these By-Laws to be kept
by him are available for examination at reasonable times by
any Director at the principal office of the Corporation
during business hours; and, in general, shall perform all
duties incident to the office of Secretary and such other
duties as may, from time to time, be assigned to him by the
Board of Directors, the Executive Committee, the Chairman of
the Board or the President.
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At the request of the Secretary, or in his absence
or disability, any Assistant Secretary shall perform any of
the duties of the Secretary and, when so acting, shall have
all the powers of, and be subject to all of the restrictions
upon, the Secretary. Except where by law the signature of
the Secretary is required, each of the Assistant Secretaries
shall possess the same power as the Secretary to sign
certificates, contracts, obligations and other instruments
of the Corporation, and to affix the seal of the Corporation
to such instruments, and attest the same.
SECTION 11. The Treasurer. The Treasurer shall
have charge and custody of all funds and securities of the
Corporation and shall deposit all such funds in the name of
the Corporation in such depositories as may be designated by
the Board of Directors or pursuant to Section 3 of Article
IX; shall disburse the funds of the Corporation, taking
proper vouchers for such disbursements, and shall render to
the Chairman of the Board or the Directors, at the regular
meetings of the Board, or whenever they may require it, an
account of all his transactions as Treasurer and of the
financial condition of the Corporation, and, in general,
shall perform all duties incident to the office of Treasurer
and such other duties as may, from time to time, be assigned
to him by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President. If required by
the Board of Directors, he shall give a bond for the
faithful discharge of his duties in such sum and with such
surety or sureties as the Board of Directors shall
determine.
At the request of the Treasurer, or in his absence
or disability, any Assistant Treasurer may perform any of
the duties of the Treasurer and, when so acting, shall have
all the powers of, and be subject to all the restrictions
upon, the Treasurer. Except where by law the signature of
the Treasurer is required, each of the Assistant Treasurers
shall possess the same power as the Treasurer to sign all
certificates, contracts, obligations and other instruments
of the Corporation.
SECTION 12. Salaries. The salaries of the
officers shall be fixed from time to time by the Board of
Directors. No officer shall be prevented from receiving
such salary by reason of the fact that he is also a Director
of the Corporation.
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ARTICLE VI
Certificates of Stock, Books and Records
SECTION 1. Form; Signature. A certificate of
stock, signed by the Chairman of the Board, the President or
any Vice President, and the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, shall
be issued to each stockholder certifying the number of
shares owned by him in the Corporation. Any or all of the
signatures on the certificates 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 an officer, transfer agent or registrar at the date of
issue.
If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any
class, there shall be set forth on the 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. Lost Certificates. The Board of
Directors may determine the conditions under which a new
share certificate is to be issued in place of any
certificate theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed. When authorizing the
issuance 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 give the Corporation a bond
sufficient to indemnify it against any claim that may be
made against the Corporation on account of the alleged loss,
theft or destruction of any such certificate or the issuance
of such new certificate.
SECTION 3. Transfer of Shares. The shares of
stock of the Corporation shall be transferable only upon its
books by the holders thereof in person or by their duly
authorized attorneys or legal representatives, and upon such
transfer the old certificates shall be surrendered to the
corporation by the delivery thereof to the person in charge
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of the stock and transfer books and ledgers, or to such
other person as the Board of Directors may designate, by
whom they shall be cancelled, and new certificates shall
thereupon be issued. A record shall be made of each
transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so
expressed in the entry of the transfer.
SECTION 4. Registered Stockholders. The
Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact
thereof and, accordingly, 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 law.
SECTION 5. Determining 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
activity, the Board of Directors may fix (or authorize the
Secretary to fix), in advance, a record date, which shall
not be more than sixty days nor less than ten days before
the date of such meeting, nor more than sixty days prior to
any other action. In such case, only such stockholders as
shall be stockholders of record on the date so fixed shall
be entitled to notice of, or to vote at, such meeting or to
receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, as the case
may be, notwithstanding any transfer of any shares on the
books of the Corporation after any record date fixed as
aforesaid. A determination of stockholders or 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.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall be as
determined by the Board of Directors or by the Executive
Committee from time to time.
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ARTICLE VIII
Waiver of Notice
Whenever any notice whatever is required to be
given by law, by the Certificate of Incorporation or by
these By-Laws, the person entitled thereto may, in person or
by attorney thereunto authorized, in writing or by
telegraph, telex or cable, waive such notice whether before
or after the meeting or other matter in respect of which
such notice is to be given, and in such event such notice
need not be given to such person and such waiver shall be
deemed equivalent to such notice. Neither the purpose of
nor the business to be transacted at such meeting need be
specified in any written waiver of notice. Attendance of a
person at a meeting shall constitute a waiver of such
meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of a meeting,
to the transaction of any business because the meeting is
not lawfully called or convened.
ARTICLE IX
General Provisions
SECTION 1. Contract, etc., How Executed. The
Board of Directors or the Executive Committee may authorize
any officer or officers, agent or agents, or employee or
employees of the Corporation to enter into any contract or
execute and deliver any instrument in the name and on behalf
of the Corporation, and such authority may be general or
confined to specific instance.
SECTION 2. Checks, etc. All checks, drafts,
bills of exchange or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name
of the Corporation, shall be signed, either manually or in
facsimile, by such officer or officers, or agent or agents,
as may from time to time be designated by these By-Laws, or
by the Board of Directors or the Executive Committee, or who
shall have been designated in writing by any two officers of
the Corporation, acting jointly, who shall have been
authorized and empowered by the Board of Directors or the
Executive Committee to make such designation. A designation
by the Board of Directors, the Executive Committee or by
officers thereunto duly authorized and empowered may be
general or confined to specific instances.
SECTION 3. Depositories. Funds or securities of
the Corporation shall be deposited in such depositories as
shall be appointed by the Board of Directors, the Executive
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Committee or as shall be appointed by any two officers of
the Corporation, acting jointly, who shall have been
authorized and empowered by the Board of Directors or the
Executive Committee to make such appointment.
SECTION 4. Proxies. Unless otherwise provided by
resolutions of the Board of Directors, the Board of
Directors or the Executive Committee may from time to time
appoint any 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 a stockholder or otherwise in any other corporation
any of whose shares or other securities may be held by the
Corporation, at meetings of holders of the shares or other
securities of such other corporation, or to consent or
dissent in writing 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 or
dissent, 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 he or they may deem necessary and proper.
SECTION 5. Seal. The corporate seal shall be in
the form of a circle, shall bear the name of the
Corporation, the year 1970 and the words "Corporate Seal -
Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any
manner reproduced. Except as otherwise required by law, the
affixation of the corporate seal shall not be necessary to
the valid execution, assignment or endorsement of any
instrument in writing.
ARTICLE X
Amendments
These By-Laws, or any of them, may be altered,
amended or repealed, or new By-Laws may be adopted, at any
time by the affirmative vote of at least a majority of the
votes which all stockholders present in person or by proxy
at such meeting are entitled to cast, or by the Board of
Directors at any regular or special meeting of the Board.
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ARTICLE XI
By-Laws Subject to Provisions
of Certificate of Incorporation
In case of any conflict between the provisions of
these By-Laws and the Certificate of Incorporation, the
provisions of the Certificate of Incorporation shall
control.
ARTICLE XII
Election Not to be Governed by the
Florida Control-Share Acquisition Statute
To the extent, if any, that the provisions of
Section 607.109 of the Florida General Corporation Act (the
"Florida Act") apply to any "control-share acquisition" (as
defined in Section 607.109 of the Florida Act) of shares of
the Common Stock, the Corporation hereby expressly elects
that the provisions of Section 607.109 of the Florida Act
shall not apply to any control-share acquisition of shares
of Common Stock, and that shares of Common Stock acquired in
any such control-share acquisition shall have ascribed
thereto the full voting rights, powers and privileges
provided by the Corporation's Certificate of Incorporation,
as amended, and these By-Laws.
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