BY-LAWS
of
AMERICAN PRESIDENT COMPANIES, LTD.
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the Company in the
State of Delaware and the name of the resident agent in charge thereof is The
Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L-100,
Dover, Delaware 19901.
Section 2. Other Offices. The Company shall have its principal office
at 1111 Broadway, Oakland, California 94607 and shall also have offices at such
other places as the President and the Board of Directors may from time to time
designate or appoint, or as the business of the Company may require.
ARTICLE II
Directors
Section 1. Powers. The corporate powers, business and property of the
Company shall be vested in and exercised, conducted and controlled by the Board
of Directors which may exercise all said powers of the Company 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.
Section 2. Determination of Number. The exact number of Directors who
shall constitute the Board of Directors shall be determined by resolution
adopted by the affirmative vote of a majority of the entire Board of Directors
at any regular or special meeting of said Board; provided, that notice of such
proposed action shall have been given in the notice for such regular or special
meeting; and provided, further, however, that in no event shall the number of
directors be less than five. No decrease in the number of Directors shall have
the effect of shortening the term of any incumbent Director.
Section 3. Nominations. Nominations for election to the Board of Directors
of the Company at a meeting of stockholders may be made by the Board or on
behalf of the Board by the Nominating Committee appointed by the Board, or by
any stockholder of the Company entitled to vote for the election of Directors at
such meeting. Such nominations, other than those made by or on behalf of the
Board, shall be made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the Secretary of the Company, and
received by him not less than thirty (30) days nor more than sixty (60) days
prior to any meeting of stockholders called for the election of Directors;
provided, however, that if less than thirty-five (35) days' notice of the
meeting is given to stockholders, such nomination shall have been mailed or
delivered to the Secretary of the Company not later than the close of business
on the seventh (7th) day following the day on which the notice of meeting was
mailed. Such notice shall set forth as to each proposed nominee who is not an
incumbent Director (i) the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the principal occupation
or employment of each such nominee, (iii) the number of shares of stock of the
Company which are beneficially owned by each such nominee and by the nominating
stockholder, and (iv) any other information concerning the nominee that must be
disclosed of nominees in proxy solicitations Regulation 14A of the Securities
Exchange Act of 1934.
The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
ARTICLE III
Meetings of Directors
Section 1. Place of Meetings. Meetings of the Board of Directors of the
Company whether regular, special or adjourned shall be held at the principal
office of the Company, as specified in Section 2 of Article I hereof, or at any
other place within or without the State of Delaware which has been designated
from time to time by resolution of the Board or by written consent of all
members of the Board. Any meeting shall be valid wherever held, if held upon the
written consent of all members of the Board of Directors given either before or
after the meeting and filed with the Secretary of the Company.
Section 2. Regular Meetings. Regular meetings of the Board of Directors
shall be held immediately following the adjournment of each annual meeting of
the stockholders, every second month thereafter and at such other times as may
be designated from time to time by resolution of the Board of Directors.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman or the President of the
Company or by any four Directors.
Section 4. Notice of Meetings. Written notice of the time and place of
special meetings of the Board of Directors shall be delivered at least two (2)
days before the meeting personally to each Director, or sent in writing, by mail
addressed to such Director, at his address as it appears on the records of the
Company, with postage thereon prepaid; such notice shall be deemed to be given
at the time when the same shall be deposited in the United States mail;
provided, however, that if a special meeting is called by the Chairman or the
President or by any four Directors because the need for urgent action exists,
then each Director shall be given not less than three (3) hours' notice, and
such notice shall be deemed given once it has been conveyed to a Director in
person or by telephone or an attempt has been made to give such notice by
telephoning a Director at his home telephone number and his business office
telephone number as such numbers are shown in the Secretary's records. Notice
to Directors may also be given by telex or telegram.
Whenever any such notice is required to be given, 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. If the
address of a Director is not shown on the records and is not readily
ascertainable, notice shall be addressed to him at the city or place in which
the meetings of the Directors are regularly held. Notice of the time and place
of holding an adjourned meeting need not be given to absent Directors if the
time and place be fixed at the meeting adjourned.
Section 5. Quorum. A majority of the authorized number of Directors shall
constitute a quorum of the Board of Directors for the transaction of business.
Every act or decision done or made by a majority of the Directors present at a
meeting duly held at which a quorum is present shall be regarded as the act of
the Board of Directors. In the absence of a quorum, a majority of the Directors
present may adjourn from time to time, without notice other than an announcement
at the meeting, until a quorum shall be present.
Section 6. Action Without a Meeting. 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.
Section 7. Telephone Meetings. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Company shall consist of a
Chairman of the Board, a President, one or more Vice Presidents, a Secretary,
one or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers
and a Controller. The salary which each said officer shall receive, and the
manner and times of its payment, shall be fixed and determined by the Board of
Directors upon the advice of the Compensation Committee and may be altered by
said Board from time to time at its discretion.
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.
The officers of the Company 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 Company shall be filled by
the Board of Directors.
Section 2. Chairman of the Board. The Chairman of the Board shall,
when present, preside at all meetings of the Board of Directors and the
stockholders and shall do and perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
Section 3. President. The President shall be the Chief Executive
Officer of the Company. He shall be a member of the Board of Directors and of
the Executive Committee thereof and, except for the Compensation Committee and
the Audit Committee, an ex officio member of all other committees thereof, and
he shall have responsibility for the general management and direction of the
business of the Company, subject to control and direction of the Board of
Directors. In the absence or disability of the Chairman, he shall perform the
duties of the Chairman of the Board and, when so acting, shall have all of the
powers of and be subject to all the restrictions upon the Chairman of the Board.
The President shall, in the absence of the Chairman of the Board, preside at
meetings of the Board of Directors and the stockholders, and shall perform such
other duties and have such other powers as the Board of Directors may from time
to time prescribe.
Section 4. Vice Presidents. In the event of the absence or disability
of the Chairman of the Board and the President, the Vice Presidents, in the
order designated by the Directors or, in the absence of any designation, then in
the order of their election, shall perform the duties of the Chairman of the
Board and the President and, when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chairman of the Board and 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.
Section 5. The Secretary and Assistant Secretary. 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 Company and
of the Board of Directors in a book to be kept for that purpose and shall
perform similar duties for the committees of the Board when required. The
Secretary 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, or the
President, under whose supervision such officer shall be.
The Secretary shall have custody of the corporate seal of the Company and
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by the Secretary's signature. The Board of
Directors may give general authority to any other officer to affix the seal of
the Company and to attest the affixing by his signature.
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 the Secretary's 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.
Section 6. The Treasurer and Assistant Treasurers. The Treasurer shall
have the custody of the corporate funds and securities and shall deposit all
moneys and other valuable effects in the name and to the credit of the Company
in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Company as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer.
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 the Treasurer's 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.
Section 7. Controller. The Controller shall have charge of the Company's
books of accounts, records and auditing, and generally do and perform all such
other duties as pertain to such office, and as may be required by the Board of
Directors. The Controller shall render to the President and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
a report on the financial condition of the Company.
Section 8. Powers of Attorney. Whenever an applicable statute, decree,
rule or regulation requires a document to be subscribed by a particular officer
of the Company, such document may be signed on behalf of such officer by a duly
appointed attorney-in-fact, except as otherwise directed by the Board of
Directors or limited by law.
ARTICLE V
Meetings of Stockholders
Section 1. Meetings. Annual meetings of stockholders shall be held in the
City of Oakland, State of California, at the principal office of the Company, as
specified in Section 2 of Article I hereof, or at such other place either within
or without the State of Delaware as shall be designated from time to time by
resolution of 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 Meetings. Annual meetings of stockholders shall be
held at such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of meeting. At the annual meeting the
stockholders shall elect by a plurality vote the number of Directors equal to
the number of Directors of the class whose term expires at such meeting (or, if
fewer, the number of Directors properly nominated and qualified for election) to
hold office until the third succeeding annual meeting of stockholders after
their election and shall transact such other business as may properly be brought
before the meeting.
To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors or (c) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before the meeting by a stockholder, the Secretary of the
Company must have received notice in writing from the stockholder not less than
thirty (30) days nor more than sixty (60) days prior to the meeting; provided,
however, that if less than thirty-five (35) days' notice of the meeting is given
to stockholders, such notice shall have been received by the Secretary of the
Company not later than the close of business on the seventh (7th) day following
the day on which the notice of meeting was mailed.
Such written notice to the Secretary shall set forth, as to each matter
the stockholder proposes to bring before the annual meeting: (i) a brief
description of the business, (ii) the name and address, as they appear on the
Company's books, of the stockholder proposing such business, (iii) the class and
number of shares of stock of the Company beneficially owned by such stockholder,
and (iv) any material interest of such stockholder in such business.
Notwithstanding any other provision in these By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2.
Section 3. Stockholder List. The officer who has charge of the stock
ledger of the Company 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 4. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Board of Directors or by the
President.
Section 5. Notice of Meeting. Written notice of any annual or special
meeting stating the place, date and hour of the meeting and, in the case of a
special meeting, stating the purpose or purposes for which the meeting is
called, shall be given not less than ten (l0) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Whenever notice is required to be given to any stockholder, such notice
shall be given in writing, by mail, addressed to each stockholder at his address
as it appears on the records of the Company, 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. Whenever any such notice is required to be
given, 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.
Section 6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. 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 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 7. Conduct of Meetings. The Chairman of the Board, or such other
officer as may preside at any meeting of the stockholders, shall have the
authority to establish from time to time, such rules for tile conduct of such
meetings, and to take such action, as may in his judgment be necessary or proper
for the conduct of the meeting and in the best interests of the Company and the
stockholders in attendance in person or by proxy.
ARTICLE VI
Committees of the Board of Directors
Section 1. Executive Committee. The Board of Directors shall appoint
an Executive Committee to consist of the President and not less than two (2) nor
more than six (6) other Directors of the Company. The Executive Committee shall
meet at such times and places as it may determine. The Executive Committee
shall have and may exercise when the Board is not in session all the powers of
the Board in the management of the business and affairs of the Company, without
limitation, except as set forth in Section 9 below.
Section 2. Nominating Committee. The Board of Directors shall appoint a
Nominating Committee consisting of three Directors of the Company who shall not
be officers of the Company. The Nominating Committee shall recommend to the
Board the number of Directors which best meets the requirements of the Company;
identify, evaluate, review and recommend to the Board qualified candidates to
fill vacancies on the Board and any newly created directorships resulting from
an increase in the number of Directors; recommend to the Board the individuals
to constitute the nominees of the Board for election as directors at the annual
meeting of stockholders; recommend to the Board a list of Directors selected as
members of each committee of the Board; and perform such other duties as may be
assigned by the Board.
Section 3. Compensation Committee. The Board shall appoint a
Compensation Committee consisting of three (3) or more Directors of the Company.
The Compensation Committee shall review annually and recommend to the Board of
Directors the level of compensation of the Chairman of the Board and the
President, giving consideration for each to the amount and composition of his
total compensation in terms of salary, stock options and other benefits; review
annually the recommendations of the Chairman of the Board and the President
concerning salaries and other compensation of all senior officers reporting to
each of them, as well as review from time to time other conditions of
employment; administer the 1989 Stock Incentive Plan, the 1992 Directors' Stock
Option Plan, the 1995 Stock Bonus Plan and year-end bonus plans; review and make
recommendations to the Board of Directors for changes in the Company's
compensation and benefit plans and practices; and administer other compensation
plans that may be adopted from time to time as authorized by the Board of
Directors.
Section 4. Audit Committee. The Board of Directors shall appoint an Audit
Committee of three or more Directors of the Company who shall not be officers of
the Company. The Audit Committee shall receive from and review with the
Company's independent auditors the annual report of such auditors; review with
the independent auditors the scope of the succeeding annual examination;
nominate the independent auditors to be appointed each year by the Board; review
consulting services made by the Company's independent auditors and evaluate the
possible effect on the auditors' independence of performing such services;
ascertain the existence of adequate internal accounting and control systems; and
review with management and the Company's independent auditors current and
emerging accounting and financial reporting requirements and practices affecting
the Company.
Section 5. Quorum and Vacancies. A majority of the members of the
committee (which majority shall, in the case of the Executive Committee, include
the President) shall constitute a quorum for the transaction of business. In
the absence or disqualification of a member of a committee, the member or
members present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place of any such
absent or disqualified member.
Section 6. Notice and Emergency Action. Notice of the time and place of
committee meetings shall be given in writing or by telephone or in person, by
any member of the committee, to all members of the committee at least two
(2) days' prior to the time of holding such meeting; provided, however,
that such notice requirement shall not be applicable if any member of the
Executive Committee deems it necessary to cause the Executive Committee to act
on an urgent basis. In the event a member of the Executive Committee deems such
urgent action necessary, such member shall attempt to contact each other member
of the Executive Committee by telephone for the purpose of having each such
member consider and act upon the urgent matter or matters presented. Such
consideration and action may take place by telephone without convening in
meeting. The quorum and voting requirements set forth in Section 5 above shall
pertain to such urgent action, and for this purpose all persons reached by
telephone shall be deemed to be present. The member of the Executive Committee
who calls for urgent action in the manner described herein, immediately
following the approval or disapproval of any action thereby proposed, shall
report such action to the Secretary of the Company for the purpose of having it
described in the minutes of the Executive Committee. Such report and minutes
shall also include a recitation of all efforts made by the member calling for
such action to contact other Executive Committee members by telephone.
Section 7. Minutes; Reports to Board. Each committee shall keep regular
minutes of its meetings. All actions of the committees shall be reported to the
Board of Directors at the meeting of the Board of Directors next succeeding such
action.
Section 8. Other Committees. The Board of Directors, from time to time,
may appoint other committees for any purpose or purposes, and any such committee
shall have such powers as shall be specified in the resolution of its
appointment.
Section 9. Duties. Any committee, including the Executive 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 Company, and may authorize the
seal of the Company to be affixed to all papers which may require it; but no
such committee shall have the 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 Company's property and assets, recommending to the
stockholders a dissolution of the Company or a revocation of a dissolution, or
amending the By-Laws of the Company; and, unless the resolution of the Board
expressly provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
ARTICLE VII
Certificates for Stock
Section 1. Certificates. Every holder of stock in the Company shall be
entitled to have a certificate signed by, or in the name of the Company by the
Chairman of the Board, or the President or a Vice President and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Company, certifying the number of shares owned by him in the Company.
Section 2. Signatures. Any of or all the signatures 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 Company with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Foreign Owners. The outstanding shares of the Company shall at
all times be owned by citizens of the United States to such extent as will, in
the judgment of the Board of Directors, reasonably assure the preservation of
the Company's status as a United States citizen within the provisions of Section
2 of the Shipping Act, 1916, as amended, or any successor statute applicable to
the business being conducted by the Company (the "Citizenship Provisions"). The
Board of Directors may restrict any original issuance of shares of the Company
to citizens of the United States as such term is defined in the Citizenship
Provisions ("United States Citizens"), and, in any event, shall from time to
time establish, as a condition to the issuance or transfer of shares of the
Company to non-United States Citizens, the minimum percentage of the total
outstanding shares of the Company which shall be owned by United States
Citizens, which minimum percentage may, in the discretion of the Board of
Directors, exceed the minimum percentage required by law (the "Minimum
Percentage"). Nothing herein shall be deemed to preclude ownership by United
States Citizens of shares of the Company in excess of the Minimum Percentage.
Certificates evidencing shares of stock of the Company may be issued in
separate series, denominated respectively "Domestic Share Certificates" and
"Foreign Share Certificates." Domestic Share Certificates shall be issued in
respect of shares owned of record and beneficially by United States Citizens;
Foreign Share Certificates shall be issued in respect of shares owned of record
or beneficially by non-United States Citizens. Holders of Domestic Share
Certificates and of Foreign Share Certificates shall have in all respects
the same corporate status and corporate rights, share for share, except that
transfers of Domestic Share Certificates to non-United States Citizens shall be
restricted and, in certain circumstances, the rights of holders of Foreign Share
Certificates shall be restricted, both as herein provided.
If any shares evidenced by Domestic Share Certificates or Foreign Share
Certificates shall be transferred to United States Citizens, the share
certificates issued to the transferee in respect of the shares transferred shall
be Domestic Share Certificates.
If any shares evidenced by Domestic Share Certificates shall be proposed
to be transferred to non-United States Citizens, the share certificates issued
to the transferee in respect of the shares transferred shall be Foreign Share
Certificates; provided, however, if the stock records of the Company shall
disclose immediately prior to the time of such proposed transfer that (i) the
maximum percentage of outstanding shares of voting stock of any class allowed to
be owned by non-United States Citizens has been met or has been exceeded or (ii)
the maximum percentage of outstanding shares of voting stock of any class
allowed to be owned by non-United States Citizens would be exceeded as a result
of such proposed transfer, no transfer of shares of such class represented by
Domestic Share Certificates shall be made to non-United States Citizens.
If it shall be found by the Company that stock represented by a Domestic
Share Certificate is, in fact, owned of record or voted by or for the account of
a non-United States Citizen, the holder of such stock shall, upon the request of
the Secretary or the transfer agent of the Company, surrender such Domestic
Share Certificate for cancellation in exchange for the issuance of a Foreign
Share Certificate for such stock; provided, however, if the stock records of the
Company shall disclose immediately prior to the time of such proposed exchange
that (i) the maximum percentage of outstanding shares of voting stock of any
class allowed to be owned by non-United States Citizens has been met or has been
exceeded or (ii) the maximum percentage of outstanding shares of voting stock of
any class allowed to be owned by non-United States Citizens would be exceeded as
a result of such proposed exchange, then the exchange shall not be made and the
holder of such stock represented by a Domestic Share Certificate shall not be
entitled to receive dividends or to have any other rights, except the right to
transfer such stock to a United States Citizen.
The Board may establish from time to time reasonable procedures for
establishing the citizenship of stockholders of the Company and, without
limiting the foregoing, may require that in connection with each issue or
transfer of shares of the Company the purchaser or transferee shall certify his
citizenship status and such matters relevant thereto as the Board may require.
The Board may also establish from time to time such other reasonable
procedures as it may deem desirable for the purposes of implementing these
provisions.
Section 4. New Certificates. The Board of Directors may, or may designate
certain persons to, authorize the issuance of a new certificate or certificates
to replace any certificate or certificates theretofore issued by the Company
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 or such designated person 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 Company a bond indemnity sufficient to indemnify it against any claim
that may be made against the Company on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 5. Transfer of Stock. Upon surrender to the Company or the
transfer agent of the Company of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Company to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
Section 6. Fixing Record Date. In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, 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 such 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.
Section 7. Registered Stockholders. The Company 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 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 VIII
Dividends
Section 1. Dividends upon the capital stock of the Company, 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 Company 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 Company, or for such other purpose
as the Directors shall think conducive to the interest of the Company, and the
Directors may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE IX
Indemnification
Section 1. The Company shall indemnify any person who was or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a Director, officer or employee of the Company, or
is or was serving at the request of the Company as a Director, officer or
employee of another company, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, to the extent and under the circumstances
permitted by the General Corporation Law of the State of Delaware. Such
indemnification (unless ordered by a court) shall be made as authorized in a
specific case upon a determination that indemnification of
the Director, officer or employee is proper in the circumstances because
he has met the applicable standards of conduct set forth in the General
Corporation Law of the State of Delaware. Such determination shall be made (1)
by the Board of Directors by a majority vote of a quorum consisting of Directors
who were not parties to such action, suit or proceeding, or (2) if such quorum
is not obtainable, or even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
The foregoing right of indemnification shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any By-Law, agreement, vote of stockholders or disinterested Directors or
otherwise and shall continue as to a person who has ceased to be a Director,
officer or employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 2. Insurance. The Board of Directors shall have the power to
authorize to the extent permitted by the General Corporation Law of the State of
Delaware the purchase and maintenance of insurance on behalf of any person who
is or was a Director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a Director, officer, employee or agent
of another company, partnership, joint venture, trust or other enterprise
against any liability asserted against him or incurred by him in such capacity
or arising out of his status as such whether or not the Company would have the
power to indemnify him against such liability under the provisions of the
General Corporation Law of the State of Delaware.
ARTICLE X
Corporate Seal
The Corporate seal shall have inscribed thereon the name of the Company
and the words "Incorporated July l4, 1983, Delaware."
ARTICLE XI
Amendments
Any of these By- Laws may be altered, a mended or repealed by the
affirmative vote of at least two thirds of the Directors of the Company, which
shall include the affirmative vote of at least one Director of each class of the
Board of Directors if the Board shall then be divided into classes or by the
affirmative vote of the holders of seventy-five percent (75 %) of the shares of
the Company entitled to vote in the election of Directors, voting as one class.
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