EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
FIRESTONE RETAIL CREDIT CORPORATION
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Section 1. LAW, CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1. These by-laws are subject to the certificate of incorporation of
the corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
Section 2. STOCKHOLDERS
2.1. Annual Meeting. The annual meeting of stockholders shall be held
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at five o'clock in the afternoon on the first Tuesday in May in each year,
unless that day be a legal holiday at the place where the meeting is to be
held, in which case the meeting shall be held at the same hour on the next
succeeding day not a legal holiday, or at such other date and time as shall
be designated from time to time by the board of directors and stated in the
notice of the meeting, at which they shall elect a board of directors and
transact such other business as may be required by law or these by-laws or
as may properly come before the meeting.
2.2. Special Meetings. A special meeting of the stockholders may be
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called at any time by the chairman of the board, if any, the president or the
board of directors. A special meeting of the stockholders shall be called
by the secretary, or in the case of the death, absence, incapacity or refusal
of the secretary, by an assistant secretary or some other officer, upon
application of a majority of the directors. Any such application shall state
the purpose or purposes of the proposed meeting. Any such call shall state
the place, date, hour, and purposes of the meeting.
2.3. Place of Meeting. All meetings of the stockholders for the
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election of directors or for any other purpose shall be held at such place
within or without the State of Delaware as may be determined from time to
time by the chairman of the board, if any, the president or the board of
directors. Any adjourned session of any meeting of the stockholders shall
be held at the place designated in the vote of adjournment.
2.4. Notice of Meetings. Except as otherwise provided by law, a
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written notice of each meeting of stockholders stating the place, day and
hour thereof and, in the case of a special meeting, the purposes for which
the meeting is called, shall be given not less than ten nor more than sixty
days before the meeting, to each stockholder entitled to vote thereat, and
to each stockholder who, by law, by the certificate of incorporation or by
these by-laws, is entitled to notice, by leaving such notice with him or at
his residence or usual place of business, or by depositing it in the United
States mail, postage prepaid, and addressed to such stockholder at his
address as it appears in the records of the corporation. Such notice shall
be given by the secretary, or by an officer or person designated by the board
of directors, or in the case of a special meeting by the officer calling the
meeting. As to any adjourned session of any meeting of stockholders, notice
of the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment was taken except that if
the adjournment is for more than thirty days or if after the adjournment a
new record date is set for the adjourned session, notice of any such
adjourned session of the meeting shall be given in the manner heretofore
described. No notice of any meeting of stockholders or any adjourned session
thereof need be given to a stockholder if a written waiver of notice,
executed before or after the meeting or such adjourned session by such
stockholder, is filed with the records of the meeting or if the stockholder
attends such meeting without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders or any adjourned session thereof need be
specified in any written waiver of notice.
2.5. Quorum of Stockholders. At any meeting of the stockholders a
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quorum as to any matter shall consist of a majority of the votes entitled to
be cast on the matter, except where a larger quorum is required by law, by
the certificate of incorporation or by these by-laws. Any meeting may be
adjourned from time to time by a majority of the votes properly cast upon the
question, whether or not a quorum is present. If a quorum is present at an
original meeting, a quorum need not be present at an adjourned session of
that meeting. Shares of its own stock belonging to the corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or
indirectly, by the corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of any corporation to vote stock, including but not limited
to its own stock, held by it in a fiduciary capacity.
2.6. Action by Vote. When a quorum is present at any meeting, a
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plurality of the votes properly cast for election to any office shall elect
to such office and a majority of the votes properly cast upon any question
other than an election to an office shall decide the question, except when
a larger vote is required by law, by the certificate of incorporation or by
these by-laws. No ballot shall be required for any election unless
requested by a stockholder present or represented at the meeting and
entitled to vote in the election.
2.7. Action without Meetings. Unless otherwise provided in the
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certificate of incorporation, any action required or permitted to be taken
by stockholders for or in connection with any corporate action may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted and shall
be delivered to the corporation by delivery to its registered office in
Delaware by hand or certified or registered mail, return receipt requested,
to its principal place of business or to an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Each such written consent shall bear the date of
signature of each stockholder who signs the consent. No written consent
shall be effective to take the corporate action referred to therein unless
written consents signed by a number of stockholders sufficient to take such
action are delivered to the corporation in the manner specified in this
paragraph within sixty days of the earliest dated consent so delivered.
If action is taken by consent of stockholders and in accordance with the
foregoing, there shall be filed with the records of the meetings of
stockholders the writing or writings comprising such consent.
If action is taken by less than unanimous consent of stockholders,
prompt notice of the taking of such action without a meeting shall be given
to those who have not consented in writing and a certificate signed and
attested to by the secretary that such notice was given shall be filed with
the records of the meetings of stockholders.
In the event that the action which is consented to is such as would have
required the filing of a certificate under any provision of the General
Corporation Law of the State of Delaware, if such action had been voted upon
by the stockholders at a meeting thereof, the certificate filed under such
provision shall state, in lieu of any statement required by such provision
concerning a vote of stockholders, that written consent has been given under
Section 228 of said General Corporation Law and that written notice has been
given as provided in such Section 228.
2.8. Proxy Representation. Every stockholder may authorize another
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person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, objecting to or voting or participating at a meeting, or expressing
consent or dissent without a meeting. Every proxy must be signed by the
stockholder or by his attorney-in-fact. No proxy shall be voted or acted
upon after three years from its date unless such proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and, if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the corporation generally.
The authorization of a proxy may but need not be limited to specified action,
provided, however, that if a proxy limits its authorization to a meeting or
meetings of stockholders, unless otherwise specifically provided such proxy
shall entitle the holder thereof to vote at any adjourned session but shall
not be valid after the final adjournment thereof.
2.9. Inspectors. The directors or the person presiding at the meeting
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may, but need not, appoint one or more inspectors of election and any
substitute inspectors to act at the meeting or any adjournment thereof. Each
inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders.
On request of the person presiding at the meeting, the inspectors shall make
a report in writing of any challenge, question or matter determined by them
and execute a certificate of any fact found by them.
2.10. List of Stockholders. The secretary shall prepare and make, at
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least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares
registered in his name. The stock ledger shall be the only evidence as to
who are stockholders entitled to examine such list or to vote in person or
by proxy at such meeting.
Section 3. BOARD OF DIRECTORS
3.1. Number. The number of directors which shall constitute the whole
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board shall not be less than two nor more than six in number. Thereafter,
within the foregoing limits, the stockholders at the annual meeting shall
determine the number of directors and shall elect the number of directors as
determined. Within the foregoing limits, the number of directors may be
increased at any time or from time to time by the stockholders or by the
directors by vote of a majority of the directors then in office. The number
of directors may be decreased to any number permitted by the foregoing at any
time either by the stockholders or by the directors by vote of a majority of
the directors then in office, but only to eliminate vacancies existing by
reason of the death, resignation or removal of one or more directors.
Directors need not be stockholders.
3.2. Tenure. Except as otherwise provided by law, by the certificate
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of incorporation or by these by-laws, each director shall hold office until
the next annual meeting and until his successor is elected and qualified, or
until he sooner dies, resigns, is removed or becomes disqualified.
3.3. Powers. The business and affairs of the corporation shall be
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managed by or under the direction of the board of directors who shall have
and may exercise all the powers of the corporation and do all such lawful
acts and things as are not by law, the certificate of incorporation or these
by-laws directed or required to be exercised or done by the stockholders.
3.4. Vacancies. Vacancies and any newly created directorships
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resulting from any increase in the number of directors may be filled by vote
of the stockholders at a meeting called for the purpose, or by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director. When one or more directors shall resign from the board,
effective at a future date, a majority of the directors then in office,
including those who have resigned, shall have power to fill such vacancy or
vacancies, the vote or action by writing thereon to take effect when such
resignation or resignations shall become effective. The directors shall have
and may exercise all their powers notwithstanding the existence of one or
more vacancies in their number, subject to any requirements of law or of the
certificate of incorporation or of these by-laws as to the number of
directors required for a quorum or for any vote or other actions.
3.5. Committees. The board of directors may, by vote of a majority of
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the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of
one or more of the directors; (b) designate one or more directors
as alternate members of any such committee who may replace any
absent or disqualified member at any meeting of the committee; and (c)
determine the extent to which each such committee shall have and may exercise
the powers of the board of directors in the management of the business and
affairs of the corporation, including the power to authorize the seal of the
corporation to be affixed to all papers which require it and the power and
authority to declare dividends or to authorize the issuance of stock;
excepting, however, such powers which by law, by the certificate of
incorporation or by these by-laws they are prohibited from so delegating.
In the absence or disqualification of any member of such committee and his
alternate, if any, the member or members thereof present at any meeting and
not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Except as
the board of directors may otherwise determine, any committee may make rules
for the conduct of its business, but unless otherwise provided by the board
or such rules, its business shall be conducted as nearly as may be in the
same manner as is provided by these by-laws for the conduct of business by
the board of directors. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors upon request.
3.6. Regular Meetings. Regular meetings of the board of directors may
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be held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the
same place as the annual meeting of stockholders.
3.7. Special Meetings. Special meetings of the board of directors may
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be held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board, if any, the president, or by one-third or more in number of the
directors, reasonable notice thereof being given to each director by the
secretary or by the chairman of the board, if any, the president or any one
of the directors calling the meeting.
3.8. Notice. It shall be reasonable and sufficient notice to a
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director to send notice by mail at least forty-eight hours or by telegram at
least twenty-four hours before the meeting addressed to him at his usual or
last known business or residence address or to give notice to him in person
or by telephone at least twenty-four hours before the meeting. Notice of a
meeting need not be given to any director if a written waiver of notice,
executed by him before or after the meeting, is filed with the records of
the meeting, or to any director who attends the meeting without protesting
prior thereto or at its commencement the lack of notice to him. Neither
notice of a meeting nor a waiver of a notice need specify the purposes of
the meeting.
3.9. Quorum. Except as may be otherwise provided by law, by the
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certificate of incorporation or by these by-laws, at any meeting of the
directors a majority of the directors then in office shall constitute a
quorum; a quorum shall not in any case be less than one-third of the total
number of directors constituting the whole board. Any meeting may be
adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
3.10. Action by Vote. Except as may be otherwise provided by law, by
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the certificate of incorporation or by these by-laws, when a quorum is
present at any meeting the vote of a majority of the directors present shall
be the act of the board of directors.
3.11. Action Without a Meeting. Any action required or permitted to
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be taken at any meeting of the board of directors or a committee thereof may
be taken without a meeting if all the members of the board or of such
committee, as the case may be, consent thereto in writing, and such writing
or writings are filed with the records of the meetings of the board or of
such committee. Such consent shall be treated for all purposes as the act
of the board or of such committee, as the case may be.
3.12. Participation in Meetings by Conference Telephone. Members of
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the board of directors, or any committee designated by such board, 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 or by any other means
permitted by law. Such participation shall constitute presence in person at
such meeting.
3.13. Interested Directors and Officers.
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(a) No contract or transaction between the corporation and one or more
of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of the corporation's directors or officers are directors or officers,
or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at
or participates in the meeting of the board or committee thereof which
authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority
of the disinterested directors, even though the disinterested directors be
less than a quorum; or
(2) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified, by the board of
directors, a committee thereof, or the stockholders.
(b) 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 the contract or transaction.
Section 4. OFFICERS AND AGENTS
4.1. Enumeration; Qualification. The officers of the corporation shall
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be a president, a treasurer, a secretary and such other officers, if any, as
the board of directors from time to time may in its discretion elect or
appoint including without limitation a chairman of the board, one or more
vice presidents and a controller. The corporation may also have such agents,
if any, as the board of directors from time to time may in its discretion
choose. Any officer may be but none need be a director or stockholder. Any
two or more offices may be held by the same person. Any officer may be
required by the board of directors to secure the faithful performance of his
duties to the corporation by giving bond in such amount and with sureties or
otherwise as the board of directors may determine.
4.2. Powers. Subject to law, to the certificate of incorporation and
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to the other provisions of these by-laws, each officer shall have, in
addition to the duties and powers herein set forth, such duties and powers
as are commonly incident to his office and such additional duties and powers
as the board of directors may from time to time designate.
4.3. Election. The officers may be elected by the board of directors
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at their first meeting following the annual meeting of the stockholders or
at any other time. At any time or from time to time the directors may
delegate to any officer their power to elect or appoint any other officer or
any agents.
4.4. Tenure. Each officer shall hold office until the first meeting
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of the board of directors following the next annual meeting of the
stockholders and until his respective successor is chosen and qualified
unless a shorter period shall have been specified by the terms of his
election or appointment, or in each case until he sooner dies, resigns, is
removed or becomes disqualified. Each agent shall retain his authority at
the pleasure of the directors, or the officer by whom he was appointed or by
the officer who then holds agent appointive power.
4.5. Chairman of the Board of Directors, President and Vice President.
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The chairman of the board, if any, shall have such duties and powers as shall
be designated from time to time by the board of directors. Unless the board
of directors otherwise specifies, the chairman of the board, or if there is
none the chief executive officer, shall preside, or designate the person who
shall preside, at all meetings of the stockholders and of the board of
directors.
Unless the board of directors otherwise specifies, the president shall
be the chief executive officer and shall have direct charge of all business
operations of the corporation and, subject to the control of the directors,
shall have general charge and supervision of the business of the corporation.
Any vice presidents shall have such duties and powers as shall be set
forth in these by-laws or as shall be designated from time to time by the
board of directors or by the president.
4.6. Treasurer and Assistant Treasurers. Unless the board of directors
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otherwise specifies, the treasurer shall be the chief financial officer of
the corporation and shall be in charge of its funds and valuable papers, and
shall have such other duties and powers as may be designated from time to
time by the board of directors or by the president. If no controller is
elected, the treasurer shall, unless the board of directors otherwise
specifies, also have the duties and powers of the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
4.7. Controller and Assistant Controllers. If a controller is elected,
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he shall, unless the board of directors otherwise specifies, be the chief
accounting officer of the corporation and be in charge of its books of
account and accounting records, and of its accounting procedures. He shall
have such other duties and powers as may be designated from time to time by
the board of directors, the president or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the president, the
treasurer or the controller.
4.8. Secretary and Assistant Secretaries. The secretary shall record
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all proceedings of the stockholders, of the board of directors and of
committees of the board of directors in a book or series of books to be kept
therefor and shall file therein all actions by written consent of
stockholders or directors. In the absence of the secretary from any meeting,
an assistant secretary, or if there be none or he is absent, a temporary
secretary chosen at the meeting, shall record the proceedings thereof.
Unless a transfer agent has been appointed the secretary shall keep or cause
to be kept the stock and transfer records of the corporation, which shall
contain the names and record addresses of all stockholders and the number of
shares registered in the name of each stockholder. He shall have such other
duties and powers as may from time to time be designated by the board of
directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
secretary.
Section 5. RESIGNATIONS AND REMOVALS
5.1. Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, if any, the president,
or the secretary or to a meeting of the board of directors. Such resignation
shall be effective upon receipt unless specified to be effective at some
other time, and without in either case the necessity of its being accepted
unless the resignation shall so state. A director (including persons elected
by directors to fill vacancies in the board) may be removed from office with
or without cause by the vote of the holders of a majority of the shares
issued and outstanding and entitled to vote in the election of directors.
The board of directors may at any time remove any officer either with or
without cause. The board of directors may at any time terminate or modify
the authority of any agent. No director or officer resigning and (except
where a right to receive compensation shall be expressly provided in a duly
authorized written agreement with the corporation) no director or officer
removed shall have any right to any compensation as such director or officer
for any period following his resignation or removal, or any right to damages
on account of such removal, whether his compensation be by the month or by
the year or otherwise; unless, in the case of a resignation, the directors,
or, in the case of removal, the body acting on the removal, shall in their
or its discretion provide for compensation.
Section 6. VACANCIES
6.1. If the office of the president or the treasurer or the secretary
becomes vacant, the directors may elect a successor by vote of a majority of
the directors then in office. If the office of any other officer becomes
vacant, any person or body empowered to elect or appoint that officer may
choose a successor. Each such successor shall hold office for the unexpired
term, and in the case of the president, the treasurer and the secretary until
his successor is chosen and qualified or in each case until he sooner dies,
resigns, is removed or becomes disqualified. Any vacancy of a directorship
shall be filled as specified in Section 3.4 of these by-laws.
Section 7. CAPITAL STOCK
7.1. Stock Certificates. Each stockholder shall be entitled to a
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certificate stating the number and the class and the designation of the
series, if any, of the shares held by him, in such form as shall, in
conformity to law, the certificate of incorporation and the by-laws, be
prescribed from time to time by the board of directors. Such certificate
shall be signed by the chairman or vice chairman of the board, if any, or the
president or a vice president and by the treasurer or an assistant treasurer
or by the secretary or an assistant secretary. Any of or all the signatures
on the certificate may be a facsimile. In case an officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed on
such certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent,
or registrar at the time of its issue.
7.2. Loss of Certificates. In the case of the alleged theft, loss,
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destruction or mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof,
as the board of directors may prescribe.
Section 8. TRANSFER OF SHARES OF STOCK
8.1. Transfer on Books. Subject to the restrictions, if any, stated
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or noted on the stock certificate, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation or its transfer
agent of the certificate therefor properly endorsed or accompanied by a
written assignment and power of attorney properly executed, with necessary
transfer stamps affixed, and with such proof of the authenticity of signature
as the board of directors or the transfer agent of the corporation may
reasonably require. Except as may be otherwise required by law, by the
certificate of incorporation or by these by-laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and
the right to receive notice and to vote or to give any consent with respect
thereto and to be held liable for such calls and assessments, if any, as may
lawfully be made thereon, regardless of any transfer, pledge or other
disposition of such stock until the shares have been properly transferred on
the books of the corporation.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
8.2. Record Date and Closing Transfer Books. In order that the
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corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than sixty nor less than
ten days before the date of such meeting. If no such record date is fixed
by the board of directors, the record date for determining the stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held. 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.
In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the
board of directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted
by the board of directors. If no such record date has been fixed by
the board of directors, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when no prior
action by the board of directors is required by the General Corporation Law
of the State of Delaware, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered
to the corporation by delivery to its registered office in Delaware by hand
or certified or registered mail, return receipt requested, to its principal
place of business or to an officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
If no record date has been fixed by the board of directors and prior action
by the board of directors is required by the General Corporation Law of the
State of Delaware, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the board of directors adopts the
resolution taking such prior action.
In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or 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 a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty days prior to such payment, exercise
or other action. If no such record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the board of directors adopts the resolution
relating thereto.
Section 8a. INDEMNIFICATION OF DIRECTORS AND OFFICERS
8.1. The corporation shall, to the extent legally possible, indemnify
each of its directors and officers (including persons who serve at its
request as directors, officers or trustees of another organization, or in any
capacity with respect to any employee benefit plan) against all liabilities
and expenses, including amounts paid in satisfaction of judgements, in
compromise or as fines and penalties, and counsel fees, reasonably incurred
by him in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, in which he may be involved or
with which he may be threatened, while in office or thereafter, by reason
of his being or having been such a director or officer, except with respect
to any matter as to which he shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that his action
was in the best interest of the corporation (any person serving another
organization in one or more of the indicated capacities at the request of
the corporation who shall have acted in good faith in the reasonable belief
that his action was in the best interest of such organization to be deemed
as having acted in such manner with respect to the organization) or, to the
extent that such matter relates to service with respect to any employee
benefit plan, in the best interest of the participants or beneficiaries of
such employee benefit plan; provided, however, that as to any matter
disposed of by a compromise payment by such director or officer, pursuant
to a consent decree or otherwise, no indemnification either for said payment
or for any other expenses shall be provided unless such compromise shall
be approved as in the best interest of the corporation, after notice that
it involves such indemnification: (a) by a disinterested majority of the
directors then in office; or (b) by a majority of the disinterested directors
then in office, provided that there has been obtained an opinion in writing
of independent legal counsel to the effect that such director or officer
appears to have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation; or (c) by the holders
of a majority of the outstanding stock at the time entitled to vote for
directors, voting as a single class, exclusive of any stock owned by any
interested director or officer. Expenses, including counsel fees, reasonably
incurred by any director or officer in connection with the defense or
disposition of any such action, suit or other proceeding may be paid from
time to time by the corporation in advance of the final disposition thereof
upon receipt of an undertaking by such director or officer to repay the
amounts so paid to the corporation if it is ultimately determined that
indemnification for such expenses is not authorized under this section.
The right of indemnification hereby provided shall not be exclusive of or
affect any other rights to which any director or officer may be entitled.
As used in this section, the terms "director" and "officer" include the
relevant individual's heirs, executors and administrators, and an
"interested" director or officer is one against whom in such capacity the
proceedings in question or another proceeding on the same or similar
grounds is then pending. Nothing contained in this section shall affect
any rights to indemnification to which corporate personnel other than
directors and officers may be entitled by contract or otherwise under law.
Section 9. CORPORATE SEAL
9.1. Subject to alteration by the directors, the seal of the
corporation shall consist of a flat-faced circular die with the word
"Delaware" and the name of the corporation cut or engraved thereon, together
with such other words, dates or images as may be approved from time to time
by the directors.
Section 10. EXECUTION OF PAPERS
10.1. Except as the board of directors may generally or in particular
cases authorize the execution thereof in some other manner, all deeds,
leases, transfers, contracts, bonds, notes, checks, drafts or other
obligations made, accepted or endorsed by the corporation shall be signed by
the chairman of the board, if any, the president, a vice president or the
treasurer.
Section 11. FISCAL YEAR
11.1. The fiscal year of the corporation shall end on September 30.
Section 12. AMENDMENTS
12.1. These by-laws may be adopted, amended or repealed by vote of a
majority of the directors then in office or by vote of a majority of the
stock outstanding and entitled to vote. Any by-law, whether adopted, amended
or repealed by the stockholders or directors, may be amended or reinstated
by the stockholders or the directors.