ASHLEY CAPITAL MANAGEMENT, INCORPORATED
BY-LAWS
ARTICLE I
NAME AND LOCATION
Section 1.01. Name. The name of the Corporation is ASHLEY CAPITAL
MANAGEMENT, INCORPORATED.
Section 1.02. Principal Office. The principal office of the
Corporation shall be c/o Corporate Systems Inc., 101 North Fairfield Drive,
Dover, DE 19901. The Corporation may, however, change its principal office,
maintain another office or offices and the business of the corporation may be
transacted at such other place or places in the State of Delaware, or
elsewhere, as the Board of Directors may, from time to time, determine.
ARTICLE II
SHAREHOLDERS
Section 2.01. Annual Meetings. Annual meetings of the shareholders
shall be held on the second Tuesday of April in each year if not a legal
holiday, and if a legal holiday, on the next business day, at 10 o'clock
a.m., at the principal business office of the Corporation, or at such other
date, time and place as may be fixed by the Board of Directors. Written
notice of the annual meeting shall be given at least ten days prior to the
meeting to each shareholder entitled to vote. Any business may be transacted
at the annual meeting without mention of the subjects to be covered in the
notice calling such meeting unless such subjects must be covered by specific
expression in these by-laws or by law.
Section 2.02. Special Meetings. Special meetings of the
shareholders may be called at any time, for the purpose or purposes set forth
in the call, by the President, any member of the Board of Directors, or the
holders of at least one-fifth of all the shares outstanding and entitled to
vote by delivering a written request to the Secretary of the Corporation.
Special meetings shall be held at the registered office of the Corporation or
at such other place as may be fixed by the Board of Directors. Written
notice of special meetings shall be given at least ten days prior to the
meeting to each shareholder entitled to vote. No business may be transacted
at any special meeting other than the purpose or purposes stated in the
notice of meeting.
Section 2.03. Organization. The Chairman of the Board, if one has
been elected and is present, or if not, the President of the Corporation, or
in his absence, the Vice President having the greatest seniority, shall
preside, and the Secretary, or in his absence any Assistant Secretary, shall
take the minutes of all meetings of the Shareholders.
Section 2.04. Quorum. A shareholders' meeting duly called shall
not be organized for the transaction of business unless a quorum is present.
A quorum shall consist of the holders of 66 2/3% of the shares issued and
outstanding and entitled to notice of and to vote at such meeting except as
otherwise expressly provided by law or by these Articles or by-laws. The
meeting may continue to do business until adjournment, notwithstanding the
withdrawal of such number of shareholders as would leave less than a quorum
in attendance. If a meeting cannot be organized because a quorum has not
attended, those present may adjourn the meeting from time to time to such
time (not more than 30 days after the next previous adjourned meeting) and
place as they may determine, without notice other than by announcement at the
meeting of the time and place of the adjourned meeting; in the case of the
adjournment of any meeting called for the election of directors, those who
attend the second of such adjourned meetings, although entitled to cast less
than a majority of votes entitled to be cast on any matter to be considered
at the meeting, shall nevertheless constitute a quorum for the purpose of
electing directors.
Section 2.05. Meeting by Telephone. One or more of the
shareholders may participate in any annual or special meeting of the
shareholders by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
all others participating in the meeting. Participation in this manner by a
shareholder will be attendance in person for all purposes under these by-
laws.
Section 2.06. Voting. Each shareholder entitled to notice of and to
vote at such meeting shall be entitled to vote in person or by proxy. Unless
another date has been fixed as provided by Section 5.06 of these by-laws as
the record date for the determination of shareholders entitled to notice of
and to vote at such meeting, no person to whom shares of stock have been
transferred on the books of the Corporation within the 10 days preceding the
date of such meeting shall be entitled to notice of or vote in such meeting.
Any actions taken by the shareholders upon any matter shall be valid, only if
at least a majority of the votes cast with respect to any such resolution or
matter are cast in favor thereof, except as otherwise expressly provided by
law or by the then Articles or by-laws of the Corporation.
Section 2.07. Cumulative Voting. In each election of Directors,
every shareholder entitled to vote shall have the right to multiply the
number of shares which he holds of record and which are entitled to vote, by
the total number of Directors to be elected in the same election to determine
the number of votes to which he is entitled in such election, and he may cast
the whole number of such votes for one candidate or he may distribute them
among any two or more candidates. The candidates receiving the highest
number of votes up to the number of Directors to be elected shall be elected.
Section 2.08. Informal Action by Shareholders. Except as otherwise
required by law, any action which may be taken at a meeting of the
shareholders may be taken without a meeting (and without notice), if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of record of 66-2/3% of the outstanding shares entitled
to vote on such matter. Such consent shall be forthwith filed with the
secretary of the Corporation and shall become effective 10 days after the
Secretary has given written notice of such action to each shareholder of
record entitled to vote on such matter; entitled to vote on the matter have
consented to the proposed action, such consent shall be effective upon filing
with the Secretary and the foregoing notice may be dispensed with.
ARTICLE III
DIRECTORS
Section 3.01. Number, Election and Term of Office. The number of
Directors which shall constitute the full Board of Directors shall be fixed
by the Board of Directors but shall be no less than three or, if there are
fewer than three shareholders, the number of shareholders. A full Board of
Directors shall hold office from the time of their election but each Director
shall be responsible from the time he accepts office or attends his first
meeting of the Board. Each Director shall serve until the next annual
meeting of shareholders and thereafter until his successor is duly elected
and qualifies or until his earlier death, resignation or removal.
Section 3.02. Regular Meetings; Notice. Regular meetings of the
Board of Directors shall be held at such time and place as shall be
designated by the Board of Directors from time to time. Notice of such
regular meetings of the Board shall not be required to be given, except as
otherwise expressly required herein or by law. However, whenever the time or
place of regular meetings shall be initially fixed and then changed, written
notice of such action shall be given promptly to each Director not
participating in such action. Any business may be transacted at any regular
meeting.
Section 3.03. Organization. At all meetings of the Board of
Directors, the presence of at least a majority of the Directors at the time
in office shall be necessary and sufficient to constitute a quorum for the
transaction of business. If a quorum is not present at any meeting, the
meeting may be adjourned, from time to time, by a majority of the Directors
present until a quorum as aforesaid shall be present; provided, however, that
notice of the time and place to which such meeting is adjourned shall be
given to any Directors not present either by being sent by telegraph,
facsimile, or given personally or by telephone at least 8 hours prior to the
hour of reconvening. Resolutions of the Board shall be adopted, and any
action of the Board at a meeting upon any matter shall be valid and
effective, with the affirmative vote of at least a majority of the Directors
present at a meeting duly convened. The Chairman of the Board, if one has
been elected and is present, or if not, the President, shall preside at each
meeting of the Board. In the absence of the Chairman and President, the
Directors present shall designate one of their number to preside at the
meeting. The Secretary, or in his absence, any Assistant Secretary, shall
take the minutes at all meetings of the Board of Directors. In the absence
of the Secretary and an Assistant Secretary, the presiding officer shall
designate any person to take the minutes of the meeting.
Section 3.06. Meetings by Telephone. One or more of the Directors
may participate in any regular or special meeting of the Board of Directors
or of a committee of the Board of Directors by means of conference telephone
or similar communications equipment by means of which all person
participating in the meeting are able to hear each other. Participation in a
meeting in this manner by a Director will be considered to be in attendance
in person for all purposes under these by-laws.
Section 3.07. Presumption of Assent. Minutes of each meeting of
the Board shall be made available to each Director at or before the next
succeeding meeting. Each Director shall be presumed to have assented to such
minutes and agreed to the action taken thereat unless his objection thereto
shall be made to the Secretary within two days after such meeting.
Section 3.08. Catastrophe. Notwithstanding any other provisions of
law, the Articles or these by-laws, during any emergency period caused by a
national catastrophe or local disaster, a majority of the surviving members
(or the sole survivor) of the Board of Directors who have not been rendered
incapable of acting because of incapacity or the difficulty of communication
to transportation to the place of meeting shall constitute a quorum for the
sole purpose of electing directors to fill such emergency vacancies, and a
majority of the directors present at such a meeting may act to fill such
vacancies. Directors so elected shall serve until such absent directors are
able to attend meetings or until the shareholders act to elect directors for
such purpose. During such an emergency period, if the Board is unable to or
fails to meet, any action appropriate to the circumstances may be taken by
the officers of the Corporation as may be present and able. Questions as to
the existence of a national catastrophe or local disaster and the number of
surviving members capable of acting shall be conclusively determined at the
time by the Board of Directors or the officers so acting.
Section 3.09. Resignations. Any Director may resign by submitted
to the Chairman of the Board, if one has been elected, or to the President or
the Secretary, his resignation which shall be come effective upon its receipt
by such officer or as otherwise specified therein.
Section 3.10. Committees. Standing or temporary committees may be
appointed from its own number by the Board of Directors from time to time,
and the Board may from time to time invest committees with such power and
authority, subject to such conditions as it may see fit. An Executive
Committee may be appointed by a majority of the full Board, it shall have all
the powers and exercise all the authority of the Board in the management of
the business and affairs of the Corporation except as specially limited by
the Board. The Board may designate one or more Directors as alternate
members of any committee to replace any absent or disqualified member at any
meeting; and in the event of such absence or disqualification, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not they constitute a quorum, may unanimously appoint another
director to act at the meting in the place of any such absent or disqualified
member. Any action taken by any committee shall be subject to alteration or
revocation by the Board of Directors; provided, however, that third parties
shall not be prejudiced by such alteration or revocation.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.01. Executive Office. The Executive Officers of the
Corporation shall be the Chairman of the Board, the President, the Secretary,
the Treasurer, and one or more Vice Presidents, including a Vice President or
General Counsel, Finance and Regulation, and Chief Compliance Officer and
Chief Financial Officer, as the Board may from time to time determine, all of
whom shall be elected by and serve at the pleasure of the Board of Directors.
Any two or more offices may be held by the same person. Each executive
officer shall hold office until the next succeeding annual meeting of the
Board of Directors and thereafter until his successor is duly elected and
qualifies or until his earlier death, resignation or removal.
Section 4.02. Additional Officers; Other Agents and Employees. The
Board of Directors may, from time to time, appoint or hire such additional
officers, assistant officers, agents, employees and independent contractors
as the Board deems advisable; and the Board or the President shall prescribe
their duties, conditions of employment and compensation. Subject to the
power of the Board, the President may employ from time to time such other
agents, employees, and independent contractors as he may deem advisable for
the prompt and orderly transaction of the business of the Corporation, and he
may prescribe their duties and conditions of their employment, fix their
compensation and dismiss them, without prejudice to their contract rights, if
any.
Section 4.03. The Chairman. The Chairman of the Board shall be
elected from among the Directors, shall preside at all meetings of the
shareholders and of the Board, and shall have such other powers and duties as
may be, from time to time, prescribed by the Board.
Section 4.04. The President. The President shall be the chief
executive officer of the Corporation. Subject to the control of the Board of
Directors, the President shall have general policy supervision of and general
management and executive powers over all the property, business operations,
and affairs of the Corporation and shall see that the policies and programs
adopted or approved by the Board are carried out. The President shall
exercise such further powers and duties as from time to time may be
prescribed to these by-laws or by the Board of Directors.
Section 4.05. The Vice President. The Vice Presidents may be given
by resolution of the Board general executive powers, subject to the control
of the President, concerning one or more or all segments of the operations of
the Corporation. The Vice Presidents shall exercise such further powers and
duties as from time to time may be prescribed in these by-laws or by the
board of Directors or by the President. At the request of the President, or
in his absence or disability, the senior Vice President shall exercise all
the powers and duties of the President.
Section 4.06 The Vice President, Finance and Regulation. The
Board of Directors shall annually elect a Vice President, Finance and
Regulation, who shall be an executive officer and who shall be responsible
for maintaining on a current basis the Corporation's status with such
governmental or self-regulatory bodies as the Board of Directors shall cause
the Corporation to register with and who shall insure that the Corporation
complies with all rules and regulations applicable to all governmental and
self-regulatory bodies having jurisdiction over the Corporation.
Section 4.07. The Secretary and Assistant Secretaries. It shall be
the duty of the Secretary (a) to keep or cause to be kept at the registered
office of the Corporation an original or duplicate record of the proceedings
of the shareholders and the Board of Directors and a copy of the Articles and
of the by-laws; (b) to attend to the giving of notices of the Corporation as
may be required by law or these by-laws; (c) to be custodian of the corporate
records and of the seal of the Corporation and see that the seal is affixed
to such documents as may be necessary or advisable; (d) to have charge of and
keep at the registered office of the Corporation, or cause to be kept at the
office of a transfer agent or registered with the State of Delaware, the
stock books of the Corporation and an original or duplicate share registered,
giving the names of the shareholders in alphabetical order and showing their
respective addresses, the number and classes of shares held by each, the
number and date of certificates issued for the shares, and the date of
cancellation of every certificate surrendered for cancellation; and (e) to
exercise all powers and duties incident to the office of Secretary and such
other powers and duties as may be prescribed by the Board of Directors or by
the President form time to time. The Secretary by virtue of his office shall
be an Assistant Treasurer. The Assistant Secretaries shall assist the
Secretary in the performance of his duties and shall also exercise such
further powers and duties as from time to time may be assigned to them by the
Board of Directors, the President or the Secretary. At the direction of the
Secretary or in his absence or disability, an Assistant Secretary shall
perform the duties of the Secretary.
Section 4.08. The Treasurer and Assistant Treasurers. The Treasurer
shall (a) be responsible for the custody and maintenance of the Corporation's
contracts, insurance policies, leases, deeds and other business records; (b)
see that the lists, books, reports, statements, tax returns, certificates and
other documents and records required by law are properly prepared, keep and
filed; (c) be the principal officer in charge of tax and financial matters,
budgeting and accounting of the Corporation; (d) have charge and custody of
and be responsible for the corporate funds, securities and investments; (e)
receive and give receipts for checks, notes, obligations, funds and
securities of the Corporation, and deposit monies and other valuable effects
in the name and to the creditor of the Corporation in such depositories as
shall be designated by the Board of Directors; (f) subject to the provisions
of Section 6.01 of the by-laws, cause to be disbursed the funds of the
Corporation by payment in cash or by checks or drafts upon the authorized
depositories of the Corporation, and cause proper vouchers to be taken and
preserved for such disbursements; (g) render to the President and the Board
of Directors whenever they may require it an account of all his transactions
as Treasurer and reports as to the financial position and operations of the
Corporation; (h) cause to be kept appropriate, complete and accurate books or
records of account of all its business and transactions, and (i) exercise all
powers and duties incident to the office of Treasurer and such other duties
as may be prescribed by the Board of Directors or by the President from time
to time. The Treasurer by virtue of his office shall be an Assistant
Secretary. The Assistant Treasurers shall assist the Treasurer in the
performance of his duties as from time to time may be assigned to them by the
Board of Directors, the President or the Treasurer. At the direction of the
Treasurer or in his absence or disability, an Assistant Treasurer shall
perform the duties of the Treasurer.
Section 4.09. Vacancies. Vacancy in any office or position by
reason of death, resignation, removal, disqualification, disability or other
cause, shall be filled in the manner provided in this Article IV for regular
election or appointment to such office.
Section 4.10. Delegation of Duties. The Board of Directors may in
its discretion delegate from the time being the powers and duties, or any of
them, of any officer to any other person whom it may select.
ARTICLE V
SHARES OF CAPITAL STOCK
Section 5.01. Share Certificates. Every holder of fully-paid
stock of the Corporation shall be entitled to a certificate or certificates,
to be in such form as the Board of Directors may from time to time prescribe,
and signed (in facsimile or otherwise, as permitted to law) by the President
or a Vice President and the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer which shall represent and certify the
number of shares of stock owned by such holder. The Board may authorize the
issuance of certificates for fractional shares or, in lieu thereof, script or
other evidence of ownership, which may (or may not) as determined by the
Board entitle the holder thereof to voting, dividends or other rights of
shareholders.
Section 5.02. Transfer of Shares. Transfers of shares of stock of
the Corporation shall be made on the books of the Corporation, subject to the
restrictions contained in Article X hereof, only upon surrender to the
Corporation of the certificate or certificates for such shares properly
endorsed, by the shareholder or by his assignee, agent or legal
representative, who shall furnish proper evidence of assignment, authority or
legal succession, or by the agent of one of the foregoing thereunto duly
authorized by an instrument duly executed and filed with the Corporation, in
accordance with regular commercial practice.
Section 5.03. Lost, Stolen, Destroyed or Mutilated Certificates.
New certificates for shares of stock may be issued to replace certificates
lost, stolen, destroyed or mutilated upon such conditions as the Board of
Directors may, from time to time, determine.
Section 5.04. Regulations Relating to Shares. The Board of
Directors shall have power and authority to make all such rules and
regulations not inconsistent with these by-laws as it may deem expedient
concerning the issue, transfer and registration of certificates representing
shares of the Corporation.
Section 5.05. Holders of Record. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock of the
Corporation as the holder and owner in fact thereof for all purposes and
shall not be bound to recognize any equitable or other claim to or interest
in such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by
the laws of Delaware.
Section 5.06. Fixing of Record Date. The Board of Directors may
fix a time not less than 10 nor more than 60 days prior to the date of any
meeting of shareholders, or the date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as
a record date for the determination of the shareholders entitled to notice
of, or to vote at, any such meeting, or entitled to receive payment of any
such dividend or distribution, or to receive any such allotment of rights, or
to exercise the rights in respect to any such change, conversion or exchange
of shares. In such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of, or to vote at,
any such meeting, or entitled to receive 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.
Section 5.07. Preemptive Rights. Each holder of any of the shares
of the capital stock of the Corporation shall be entitled to a preemptive
right to purchase or subscribe for (i) any unissued capital stock of any
class; (ii) any additional shares of capital stock of any class to be issued
upon any increase in the authorized capital stock of the Corporation (iii)
any other securities which pursuant to their terms are convertible into
capital stock of any class of the Corporation or which carry with them any
right to purchase capital stock of any class, whether said unissued stock or
other securities shall be issued for cash, property, or any other lawful
consideration.
ARTICLE VI
CORPORATE AUTHORITY
Section 6.01. Notes, Checks, etc. All notes, bonds, drafts,
acceptances, checks, endorsements (other than for deposit), guarantees, and
all evidences of indebtedness of the Corporation whatsoever, shall be signed
by such officers or agents of the Corporation, subject to such requirements
as to countersignature or other conditions, as the Board of Directors from
time to time may determine. Facsimile signatures on checks may be used if
authorized by the Board of Directors.
Section 6.02. Execution of Instruments Generally. Except as
provided in Section 6.01, all deeds, mortgages, contracts and other
instruments requiring execution by the Corporation may be signed by the
President, any Vice President or the Treasurer, and authority to sign any
such contracts or instruments, which may be general or confined to specific
instances, may be conferred by the Board of Directors upon any other person
to persons. Any person having authority to sign on behalf of the Corporation
may delegate from time to time by instrument in writing all or any part o
such authority to any person or persons if authorized so to do by the Board
of Directors.
Section 6.03. Voting Securities Owned by Corporation. Securities
having voting power in any other corporation owned by this Corporation shall
be voted by the President, unless the Board confers authority to vote with
respect thereto, which may be general or confined to specific investments,
upon some other person. Any person authorized to vote securities shall have
the power to appoint proxies with general power of substitution.
Section 6.04. Corporate Seal. The Board of Directors shall
prescribe the form of a suitable corporate seal which shall contain the full
name of the Corporation and the year and state of incorporation.
Section 6.05. Fiscal Year. The fiscal year of the Corporation
shall end on such day as shall be fixed by the Board of Directors.
Section 6.06. Financial Reports to Shareholders. The Board shall
have discretion to determine whether financial reports shall be sent to
shareholders, what such reports shall contain, and whether they shall be
audited or accompanied by the report of an independent or certified public
accountant.
Section 6.07. Banking. The Board shall establish the Corporation's
primary bank and shall also establish accounts with such other banks as may
be convenient to the conduct of the Corporation's business.
ARTICLE VII
CONFLICT OF INTERESTS
Section 7.01. Transaction Valid. No contract or other transaction
between the Corporation and another person shall be invalidated or otherwise
adversely affected by the fact that any one or more shareholders, directors
or officers of the Corporation:
(i) is pecuniarily or otherwise interested in, or is a shareholder,
director, officer, or member of, such other person; or
(ii) is a party to, or is in any other way pecuniarily or otherwise
interested in, the contract or other transaction; or
(iii) is in any way connected with any person pecuniarily or
otherwise interested in such contract or other transaction.
Section 7.02. Full Disclosure. The event of interest described in
Section 7.01 shall be fully disclosed in writing delivered by such interested
person prior to the meeting in the same manner as the notice of the meeting
of the Board of Directors or the shareholders, as the case may be; and in any
action of the shareholders or of the Board of Directors of the Corporation
authorizing or approving any such contract or other transaction, such
interest person or persons shall not vote but any and every shareholder or
director may be counted in determining the existence of a quorum and in
determining the effectiveness of action taken, with like force and effect as
thought he were not so interested, or were not such a shareholder, director,
member or officer, or were not such a party, or were not so connected. Such
director, shareholder or officer shall not be liable to account to the
corporation for any profit realized by him from or through any such contract
or transaction approved or authorized as aforesaid. As used in these by-
laws, the term "person" includes a corporation, partnership, firm;
association or other legal entity and the term: "his" includes references to
both male and females.
ARTICLE VIII
INDEMNIFICATION AND INSURANCE OF DIRECTORS,
OFFICERS AND OTHER PERSONS
Section 8.01. Indemnification. The Corporation shall indemnify to
the fullest extent now or hereafter permitted by law (a) 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 (other than an action by or in the right of
the Corporation) by reason of the fact that he is or was a director, officer,
employee or request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, join 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 if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests to the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; and
(b) any person who was or is a party, or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
join venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with
the defense of settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation.
Section 8.02. Good Faith. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
belied to be in, or not opposed to, the best interest of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 8.03. Exclusion. No indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the court of
common pleas of the county in which the registered office of the Corporation
is located or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court of common
pleas or such other court shall deem proper.
Section 8.04. Mandatory Indemnification. To the extent that a
director, officer, employee or agent of the Corporation has been successful
on the merits or the matter was resolved, settled or compromised, with the
Consent of the disinterested members of the Board of Directors in regard to
any action, suit or proceeding referred to in this Article VIII or in the
prosecution of any claim based upon this Section 8.04, he shall be
indemnified against and reimbursed for expenses (including attorneys' fees
and costs) actually and reasonably incurred.
Section 8.05. Determination of Standard of Conduct. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in this Article VIII. 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 a quorum is not obtainable, or, even if obtainable a
majority vote of a quorum of disinterest directors so directs, by independent
legal counsel in a written opinion, or
(3) By the shareholders.
Section 8.06. When Indemnification Shall Be Made. Expenses incurred
in defending any suit or proceeding, whether civil, criminal, administrative
or investigative may be paid by the Corporation from time to time in advance
of the final disposition of such action, suit or proceeding as authorized in
the manner provided in this Article VIII upon receipt of an undertaking by or
on behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized by this Article VIII.
Section 8.07. Non-exclusivity. Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any law, these by-laws, agreement approved by the
disinterested Directors, vote of shareholders or disinterested directors,
both as to action in his official capacity, and shall continue to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his heirs, executors and administrators.
Section 8.08. Insurance. The Corporation shall have power, but not
the obligation, to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request 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 power to indemnify him against such liability under
the provisions of this Article VIII.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. These by-laws may be amended, altered,
restated, and repealed, and new by-laws may be adopted, only by a majority of
the Shareholders of the Corporation at any regular or special meeting called
for that purpose.
These by-laws were submitted and approved by the sole shareholder of
the Corporation at a Special Meeting of the Shareholder held on October 24,
1996.
_________________________
Ms. Shira Del Pacult
Sole Shareholder
These by-laws were prepared by:
William Sumner Scott
The Scott Law Firm, P.A.
5121 Sarazen Drive
Hollywood, FL 33021
954-964-1546
Facsimile 954-964-1548