Exhibit 3.11(b)
BY-LAWS OF
THE BON-TON GIFTCO, INC.
ARTICLE I - OFFICES
Section 1-1. Registered Office and Registered Agent. The Corporation
shall maintain a registered office and registered agent within the State of
Florida, which may be changed by the Board of Directors from time to time.
Section 1-2. Other Offices. The Corporation may also have offices at
such other places, within or without the State of Florida, as the Board of
Directors may from time to time determine.
ARTICLE II - STOCKHOLDERS' MEETINGS
Section 2-1. Place of Stockholders' Meetings. Meetings of stockholders
may be held at such place as may be designated by the Board of Directors from
time to time. If no such place is designated by the Board of Directors, meetings
of the stockholders shall be :held at the principal executive office of the
corporation.
Section 2-2. Annual Meeting. A meeting of the stockholders of the
Corporation shall be held in each calendar year, commencing with the year 2002,
on the 3rd Tuesday of May if not a legal holiday, and if such day is a legal
holiday, then such meeting shall be held on the next business day.
At such annual meeting, there shall be held an election for a Board of
Directors to serve for the ensuing year and until their respective successors
are elected and qualified, or until their earlier resignation or removal.
Section 2-3. Special Meetings. Except as otherwise specifically
provided by law, special meetings of the stockholders may be called at any time:
(a) By the Board of Directors; or
(b) By the holders of record of not less than a majority of all
the shares outstanding and entitled to vote.
Upon the written request of any person entitled to call a special
meeting, which request shall be delivered to the Secretary and shall set forth
the purpose for which the meeting is desired, it shall be the duty of the
Secretary to give prompt written notice to each Stockholder of such meeting in
accordance with the provisions of Section 2-4 hereof. If the Secretary shall
fail to give such written notice within ten (10) days after receipt of such
written request, the person or persons making such request may do so.
Section 2-4. Notice of Meetings and Adjourned Meetings. Written notice
stating the place, date and hour of any meeting, and also :stating the purpose
or purposes of the meeting if the notice relates to a special meeting, shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to vote at such meeting. If mailed,
notice is given when deposited in the United States Mail, postage prepaid,
directed to the stockholder at the stockholder's address as it appears on the
records of the Corporation. Except as provided in Section 2-3, such notice may
be given by or at the direction of the person or persons authorized to call the
meeting.
When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. If the adjournment is for more
than thirty (30) 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.
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Section 2-5. Quorum. The presence, in person or by proxy, of the
holders of a majority of the outstanding shares entitled to vote shall
constitute a quorum. The stockholders present at a duly organized meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
stockholders leaving less than a quorum present. If a meeting cannot be
organized because of the absence of a quorum, those present may, except as
otherwise provided by law, adjourn the meeting to such time and place as they
may determine.
Section 2-6. Voting List; Proxies. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten (10) 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 (10) 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.
Upon the willful neglect or refusal of the Directors to produce such a
list at any meeting for the election of Directors, they shall be ineligible for
election to any office at such meeting.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy. All
proxies shall be executed in writing and
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shall be filed with the Secretary of the Corporation not later than the day on
which exercised. No proxy shall be voted or acted upon after three (3) years
from its date, unless the proxy provides for a longer period.
Except as otherwise specifically provided by law, all matters coming
before the meeting shall be determined by a vote by shares. Except as otherwise
specifically provided by law, all other votes may be taken by voice unless a
stockholder demands that it be taken by ballot, in which latter event the vote
shall be taken by written ballot.
Section 2-7. Informal Action by Stockholders. Any action required to
be taken at any annual or special meeting of stockholders, or any action that
may be taken at any annual or special meeting of stockholders, may be without
prior notice and without a vote, in writing, setting forth the action so the
holders of outstanding stock having number of votes that would be necessary
action at a meeting at which all shares were present and voted.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered to the Corporation, written consents signed by
a sufficient number of holders to take action are delivered to the Corporation.
Prompt notice of the taking of corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 2-8. Determination of Stockholders of Record. The Board of
Directors may fix, in advance, a record date to determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
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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. Such date shall be not more than sixty (60) nor less than
ten (10) days before the date of any such meeting, nor more than sixty (60) days
prior to any other action.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE III - BOARD OF DIRECTORS
Section 3-1. Number. The business and affairs of the Corporation shall
be managed by a Board of not less than two (2) and not more than seven (7)
Directors.
Section 3-2. Place of Board of Directors Meetings. Meetings of the
Board of Directors may be held at such place as a majority of the Directors may
from time to time designate or as may be designated in the notice calling the
meeting.
Section 3-3. Regular Meetings. A regular meeting of the Board of
Directors shall be held annually, immediately following the annual meeting of
stockholders, at the place where such meeting of the stockholders is held, or at
such other place, date and hour as a majority of the newly elected Directors may
designate, if notice of such designation is provided
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to all Directors in accordance with Section 3-5 below. At such meeting, the
Board of Directors shall elect officers of the Corporation. In addition to such
regular meeting, the Board of Directors shall have the power to fix, by
resolution, the place, date and hour of other regular meetings of the Board.
Section 3-4. Special Meetings. Special meetings of the Board of
Directors shall be held whenever ordered by a majority of the members of the
executive committee, if any, or by a majority of the Directors in office.
Section 3-5. Notices of Meetings.
(a) Regular Meetings. No notice shall be required to be given of
any regular meeting, unless the same be held at other than the time and place
for holding such meetings as fixed in accordance with Section 3-3 of these
by-laws, in which event ten (10) days notice shall be given of the time and
place of such meeting.
(b) Special Meetings. At least ten (10) days notice shall be
given of the time, place and purpose for which any special meeting of the Board
of Directors is to be held.
Section 3-6. Quorum. A majority of the total number of Directors
shall constitute a quorum for the transaction of business at a meeting of the
Board of Directors, and the vote of a majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
If there be less than a quorum present, a majority of those present may adjourn
the meeting to another time and place and shall cause notice of each such
adjourned meeting to be given to all absent Directors.
Section 3-7. Informal Action by the Board of Directors. 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,
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consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section 3-8. Powers.
(a) General Powers. The Board of Directors shall have all powers
necessary or appropriate to the management of the business and affairs of the
Corporation, and, in addition to the power and authority conferred by these
by-laws, may exercise all powers of the Corporation and do all such lawful acts
and things as are not by statute, these by-laws or the Articles of Incorporation
directed or required to be exercised or done by the stockholders.
(b) Specific Powers. Without limiting the general powers
conferred by the last preceding clause and the powers conferred by the Articles
of Incorporation and by-laws of the Corporation, it is hereby expressly declared
that the Board of Directors shall have the following powers:
(i) To confer upon any officer or officers of the
Corporation the power to choose, remove or suspend assistant officers, agents or
servants.
(ii) To appoint any person, firm or corporation to accept
and hold in trust for the Corporation any property belonging to the Corporation
or in which it is interested, and to authorize any such person, firm or
corporation to execute any documents and perform any duties that may be
requisite in relation to any such trust.
(iii) To appoint a person or persons to vote shares of
another corporation held and owned by the Corporation.
(iv) By resolution adopted by a majority of the full Board
of Directors, to designate one (1) or more of its number to constitute an
executive committee which, to the extent provided in such resolution, shall have
and may exercise the power of the Board of
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Directors in the management of the business and affairs of the Corporation and
may authorize the seal of the Corporation to be affixed.
(v) By resolution passed by a majority of the full Board of
Directors, to designate one (1) or more additional committees, each to consist
of one (1) or more Directors, to have such duties, powers and authority as the
Board of Directors shall determine. All committees of the Board of Directors,
including the executive committee, shall have the authority to adopt their own
rules of procedure. Absent the adoption of specific procedures, the procedures
applicable to the Board of Directors shall also apply to committees thereof.
(vi) To fix the place, time and purpose of meetings of
stockholders.
(vii) To authorize the issuance of shares of capital stock
of the Corporation on lawful terms, borrow money and incur indebtedness on
behalf of the Corporation and purchase or otherwise acquire for the Corporation
any property, rights or privileges which the Corporation is authorized to
acquire, at such prices, on such terms and conditions and for such consideration
as it shall from time to time see fit, and, at its discretion, to pay any
property or rights acquired by the Corporation, either wholly or partly in money
or in stocks, bonds, debentures or other securities of the Corporation.
(viii) To create, make and issue mortgages, bonds, deeds of
trust, trust agreements and negotiable or a transferable instruments and
securities, secured by mortgage or otherwise, and to do every other act and
thing necessary to effectuate the same.
(ix) To appoint and remove or suspend such subordinate
officers, agents or servants, permanently or temporarily, as it may from time to
time think fit, and
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to a determine their duties, and fix, and from time to time change, their
salaries or emoluments, and to require security in such instances and in such
amounts as it thinks fit.
(x) To determine who shall be authorized on the
Corporation's behalf to sign bills, notes, receipts, acceptances, endorsements,
checks, releases, contracts and documents.
Section 3-9. Compensation of Directors. Compensation of Directors and
reimbursement of their expenses incurred in connection with the business of the
Corporation, if any, shall be as determined from time to time by resolution of
the Board of Directors.
Section 3-10. Removal of Directors by Stockholders. The entire Board
of Directors or any individual Director may be removed from office without
assigning any cause by a majority vote of the holders of the outstanding shares
entitled to vote. In case the Board of Directors or any one (1) or more
Directors be so removed, new Directors may be elected at the same time.
Section 3-11. Resignations. Any Director may resign at any time by
submitting a written resignation to the Corporation. Such resignation shall take
effect at the time of its receipt by the Corporation unless another time be
fixed in the resignation, in which case it shall become effective at the time so
fixed. The acceptance of a resignation shall not be required to make it
effective.
Section 3-12. Vacancies. Vacancies and new created directorships
resulting from any increase in the authorized number of Directors elected by all
of the stockholders having the right to vote as a single class may be filled by
a majority of the Directors then in office, although less than a quorum, or by a
sole remaining Director, and each person so elected shall be
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a Director until a successor is elected and qualified or until the earlier of
such Director's resignation or removal.
Section 3-13. Participation by Conference Telephone. Directors may
participate in regular or special meetings of the Board by telephone or similar
communications equipment by means of which all other persons participating in
the meeting can hear each other, and such participation shall constitute
presence at the meeting.
ARTICLE IV - OFFICERS
Section 4-1. Election and Office. The Corporation shall have a
President, a Secretary and a Treasurer who shall be elected by the Board of
Directors. The Board of Directors may elect such additional officers as it may
deem proper, including a Chairman and a Vice Chairman of the Board of Directors,
one (1) or more Vice Presidents, and one (1) or more assistant or honorary
officers. Any number of offices may be held by the same person.
Section 4-2. Term. The President, the Secretary and the Treasurer
shall each serve for a term of one (1) year and until their respective
successors are chosen and qualified, unless removed from office by the Board of
Directors during their respective tenures. The term of office of any other
officer shall be as specified by the Board of Directors.
Section 4-3. Powers and Duties of the President. Unless otherwise
determined by the Board of Directors, the President shall also serve as the
Chief Executive Officer of the Corporation and shall have the usual duties of an
executive officer with general supervision over and direction of the affairs of
the Corporation. In the exercise of these duties and subject to the limitations
of the laws of the State of Florida, these by-laws, and the actions of the Board
of Directors, the President may appoint, suspend and discharge employees and
agents, shall preside at all meetings of the stockholders at which the President
shall be present, and, unless there is a Chairman of the Board of Directors,
shall preside at all meetings of the Board of Directors if the
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President is also a Director. The President shall also do and perform such other
duties as from time to time may be assigned by the Board of Directors.
Unless otherwise determined by the Board of Directors, the President
shall have full power and authority on behalf of the Corporation to attend and
to act and to vote at any meeting of the stockholders of any corporation in
which the Corporation may hold stock, and, at any such meeting, shall possess
and may exercise any and all of the rights and powers incident to the ownership
of such stock and which, as the owner thereof, the Corporation might have
possessed and exercised.
Section 4-4. Powers and Duties of the Secretary. Unless otherwise
determined by the Board of Directors, the Secretary shall record all proceedings
of the meetings of the Corporation, the Board of Directors and all committees,
in books to be kept for that purpose, and shall attend to the giving and serving
of all notices for the Corporation. The Secretary shall have charge of the
certificate books, transfer books and stock ledgers, and such other books and
papers as the Board of Directors may direct. The Secretary shall perform all
other duties ordinarily incident to the office of Secretary and shall have such
other powers and perform such other duties as may be assigned by the Board of
Directors.
Section 4-5. Powers and Duties of the Treasurer. Unless otherwise
determined by the Board of Directors, the Treasurer shall have charge of all the
funds and securities of the Corporation. When necessary or proper, unless
otherwise ordered by the Board of Directors, the Treasurer shall endorse for
collection on behalf of the Corporation checks, notes and other obligations,
shall deposit the same to the credit of the Corporation in such banks or
depositories as the Board of Directors may designate and shall sign all receipts
and vouchers for payments made to the Corporation. The Treasurer shall sign all
checks made by the Corporation, except
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when the Board of Directors shall otherwise direct. The Treasurer shall enter
regularly, in books of the Corporation to be kept by the Treasurer for that
purpose, a full and accurate account of all moneys received and paid by him on
account of the Corporation. Whenever required by the Board of Directors, the
Treasurer shall render a statement of the financial condition of the
Corporation. The Treasurer shall at all reasonable times exhibit the books and
accounts of the Corporation to any Director of the Corporation, upon application
at the office of the corporation during business hours. The Treasurer shall have
such other powers and shall perform such other duties as may be assigned from
time to time by the Board of Directors. The Treasurer shall give such bond, if
any, for the faithful performance of duties as shall be required by the Board of
Directors, and any such bond shall remain in the custody of the President.
Section 4-6. Powers and Duties of the Chairman of the Board of
Directors. Unless otherwise determined by the Board of Directors, the Chairman
of the Board, if any, shall preside at all meetings of the Board of Directors.
The Chairman of the Board shall have such other powers and perform such further
duties as may be assigned by the Board of Directors. Only a Director of the
Corporation may serve as Chairman of the Board.
Section 4-7. Powers and Duties of Vice Presidents and Assistant
Officers. Unless otherwise determined by the Board of Directors, each Vice
President and each assistant officer shall have the powers and perform the
duties of such officer's respective superior officer. Vice Presidents and
assistant officers shall have such rank as shall be designated by the Board of
Directors and each, in the order of rank, shall act for such superior officer in
the case of absence or disability of such superior officer, or when so directed
by such superior officer or by the Board of Directors. Any Vice President may be
designated as having responsibility for a specific aspect of the Corporation's
affairs. Such Vice President shall be superior to the other Vice
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Presidents with respect to such matters. The President shall be the superior
officer of the Vice Presidents. The Treasurer and the Secretary shall be the
superior officers of the Assistant Treasurers and Assistant Secretaries,
respectively.
Section 4-8. Delegation of Office. The Board of Directors may delegate
the powers or duties of any officer of the Corporation to any other officer or
to any Director from time to time.
Section 4-9. Vacancies. The Board of Directors shall have the power to
fill any vacancy in any office occurring for whatever reason.
Section 4-10. Resignations. Any officer may resign at any time by
submitting his or her written resignation to the Corporation. Such resignation
shall take effect at the time of its receipt by the Corporation, unless another
time be fixed in the resignation, in which case it shall become effective at the
time so fixed. The acceptance of a resignation shall not be required to make it
effective.
ARTICLE V - CAPITAL STOCK
Section 5-1. Stock Certificates. Shares of capital stock of the
corporation shall be represented by certificates signed by or in the name of the
Corporation by (a) the Chairman or Vice Chairman of the Board of Directors, or
the President or a Vice President, and (b) the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, representing the number
of shares registered in certificate form. If such certificate is countersigned
(i) by a transfer agent other than the Corporation or its employee, or (ii) by a
registrar other than the Corporation or its employee, the signatures of the
officers of the Corporation may be facsimiles. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer before such certificate is issued, such
certificate
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may be issued by the Corporation with the same effect as if the person signing
were such officer at the date of issue.
Section 5-2. Transfer of Stock. Transfers of stock shall be made on
the books of the Corporation only upon surrender of the stock certificate, duly
endorsed and otherwise in proper form for transfer, which certificate shall be
cancelled at the time of the transfer. No transfer of shares stock be made on
the books of this Corporation if such transfer is in violation of a lawful
restriction noted conspicuously on the certificate.
Section 5-3. Lost, Stolen or Destroyed Stock Certificates. The
Corporation may issue a new certificate of stock in place of any certificate
previously issued by it that is alleged to have been lost, stolen or destroyed,
and the Corporation may require the owner of the lost, stolen, or destroyed
certificate or the owner's legal representative to give the Corporation a bond
sufficient to indemnify it against claim that may be made against it on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated shares.
ARTICLE VI - NOTICES
Section 6-1. Contents of Notice. Whenever any notice of a meeting is
required to be given pursuant to these by-laws or the Certificate of
Incorporation or otherwise, the notice shall specify the place, day and hour of
the meeting and, in the case of a special meeting or where otherwise required by
law, the general nature of the business to be transacted at such meeting.
Section 6-2. Method of Notice. All notices shall be given to each
person entitled thereto, either personally or by sending a copy thereof through
the mail, charges prepaid, to the proper address as it appears on the records of
the Corporation, or as supplied by such person to the Corporation for the
purpose of notice. If notice is sent by mail, it shall be deemed
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to have been given to the person entitled thereto when deposited in the United
States Mail. If no address for a stockholder appears on the books of the
Corporation and such stockholder has not supplied the Corporation with an
address for the purpose of notice, notice deposited in the United States Mail
addressed to such stockholder care of General Delivery in the city in which the
principal office of the corporation is located shall be sufficient.
Section 6-3. Waiver of Notice. Whenever notice is required to be given
hereunder or under any provision of law or of the Articles of Incorporation of
the Corporation, a written waiver, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meetings, to the transaction of
any business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, Directors, or members of a committee of Directors need be
specified in any written waiver of notice.
ARTICLE VII - INDEMNIFICATION OF DIRECTORS AND
OFFICERS AND OTHER PERSONS
Section 7-1. Indemnification.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was
(i) a director or officer of the Corporation; or
(ii) a director or officer of the Corporation serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a
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partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such a proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by Florida law, against all
expense, liability and loss (including attorney's fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation.
(b) Right to Advancement of Expenses. The right to
indemnification conferred in paragraph (a) of this Article shall include the
right to be paid by the Corporation the expenses actually and reasonably
incurred in defending any proceeding for which such right to indemnification is
applicable in advance of its final disposition (hereinafter as "advancement of
expenses"); provided, however, that, if the Florida law requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or an
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise. The financial ability of any
indemnitee to make such repayment shall not be a prerequisite to the making of
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such payment of or for expenses. Such expenses (including attorneys' fees) shall
be so paid upon such reasonable terms and conditions, if any, as the Board of
Directors deems appropriate.
(c) Non-Exclusivity of Rights. The rights of indemnification and
to the advancement of expenses conferred in this Article shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, certificate of incorporation, by-law, agreement, vote of stockholders
or disinterested directors or otherwise.
(d) Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to the advancement of expenses,
to any employee or agent of the Corporation, or other persons, or to directors,
officers, employees or agents of other corporations which have been merged into
or consolidated with the Corporation, to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
(e) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise, or any other person, against any expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
(f) Independent Legal Counsel. Independent legal counsel may be
appointed by the Board of Directors, even if a quorum of disinterested directors
is not available, or by a person designated by the Board of Directors. If
independent legal counsel, so appointed,
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shall determine in a written opinion that indemnification is proper under this
Article, indemnification shall be made without further action of the Board of
Directors.
(g) Non-Exclusivity of Rights. The rights conferred on any person
by this Article shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation, by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(h) Amendment or Repeal. Any repeal or modification of this
Article shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
(i) Changes in Florida Law. References in this Article to Florida
law or to any provision thereof shall be to such law as it existed on the date
this Article was adopted or as such law thereafter may be changed; provided that
(a) in the case of any change which limits the indemnification rights or the
rights to advancement of expenses which the Corporation may provide, the rights
to indemnification and to the advancement of expenses provided in this Article
shall continue as theretofore to the extent permitted by law; and (b) if such
change permits the Corporation without the requirement of any further action by
shareholders or directors to provide broader indemnification rights or rights to
the advancement of expenses than the Corporation was permitted to provide prior
to such change, then the rights to indemnification and the advancement of
expenses shall be so broadened to the extent permitted by law.
(j) Applicability. The provisions of this Article shall be
applicable to all actions, suits or proceedings commenced after its adoption,
whether such arise out of acts or omissions which occurred prior or subsequent
to such adoption and shall continue as to a person who has ceased to be a
director, officer, employee or agent of, or to render services for or at the
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request of the Corporation or, as the case may be, its parent or a subsidiary,
and shall inure to the benefit of the heirs and personal representatives of such
person.
Section 7-2. Advances. Expenses incurred by any officer or director in
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking, by or on behalf of such Director or officer, to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized by law. Such expenses incurred by
other employees and agents may be paid upon such terms and conditions, if any,
as the Board of Directors deems appropriate.
Section 7-3. Insurance. The Corporation may 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
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under law.
ARTICLE VIII - SEAL
The form of seal of the corporation shall be as impressed adjacent
hereto.
ARTICLE IX - FISCAL YEAR
The Board of Directors shall have the power by resolution to fix the
fiscal year of the Corporation. If the Board of Directors shall fail to do so,
the President shall fix the fiscal year.
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ARTICLE X - AMENDMENTS
The original or other by-laws may be adopted, amended or repealed by
the stockholders entitled to vote thereon at any regular or special meeting or,
if the Articles of Incorporation so provide, by the Board of Directors. The fact
that such power has been so conferred upon the Board of Directors shall not
divest the stockholders of the power nor limit their power to adopt, amend or
repeal by-laws.
ARTICLE XI - INTERPRETATION OF BY-LAWS
All words, terms and provisions of these by-laws shall be interpreted
and defined by and in accordance with the General Corporation Law of the State
of Delaware, as amended, and as amended from time to time hereafter.
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