Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
RIVER HOLDING CORP.
ARTICLE I
Offices
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Section 1.1 Registered Office. The registered office of River
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Holding Corp. (the "Corporation") in the State of Delaware shall be at 1209
Orange Street, in the City of Wilmington, County of New Castle, and the name of
the registered agent at that address shall be The Corporation Trust Company.
Section 1.2 Principal Executive Office. The principal executive
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office of the Corporation shall be located at such place within or outside of
the State of Delaware as the board of directors of the Corporation (the "Board
of Directors") from time to time shall designate.
Section 1.3 Other Offices. The Corporation may also have an office
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or offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
Stockholders
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Section 2.1 Annual Meetings. An annual meeting of stockholders
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shall be held for the election of directors at such date, time and place, either
within or without the State of Dela ware, as may be designated by the Board of
Directors from time to time. In the absence of any such designation,
stockholders' meetings shall be at the principal executive office of the Corpora
tion. Any other proper business may be transacted at the annual meeting.
Section 2.2 Special Meetings. Special meetings of stockholders may
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be called at any time by the Board of Directors, the Chairman of the Board or
the President. Special meetings may not be called by any other person or
persons. Each special meeting shall be held at such date and time as is
requested by the person or persons calling the meeting, within the limits fixed
by law.
Section 2.3 Notice of Meetings. Whenever stockholders are required
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or permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
Section 2.4 Adjournments. Any meeting of stockholders, annual or
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special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is
for more than 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.
Section 2.5 Quorum. At each meeting of stockholders, except where
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otherwise provided by law, the Certificate of Incorporation or these Bylaws, the
holders of a majority of the outstanding shares of each class of stock entitled
to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, two or more classes or
series of stock shall be considered a single class if the holders thereof are
entitled to vote together as a single class at the meeting. In the absence of a
quorum the stockholders so present may, by majority vote, adjourn the meeting
from time to time in the manner provided by Section 2.4 of these Bylaws until a
quorum shall attend. Shares of its own capital stock belonging on the record
date for the meeting 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 the Corporation to vote stock,
including, but not limited to, its own stock, held by it in a fiduciary
capacity.
Section 2.6 Organization. Meetings of stockholders shall be
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presided over by the Chairman of the Board, if any, or in his absence by the
President, or in his absence, by a Vice President, or in the absence of the
foregoing persons, by a chairman designated by the Board of Directors, or in the
absence of such designation, by a chairman chosen at the meeting. The Secre
tary shall act as secretary of the meeting, but in his absence the chairman of
the meeting may appoint any person to act as secretary of the meeting.
Section 2.7 Voting; Proxies. Unless otherwise provided in the
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Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question.
2.
If the Certificate of Incorporation provides for more or less than one vote for
any share on any matter, every reference in these Bylaws to a majority or other
proportion of stock shall refer to such majority or other proportion of the
votes of such stock. A stockholder may vote the shares owned of record by him
either in person or by proxy executed in writing (which shall include writings
sent by telex, telegraph, cable, facsimile transmission or other means of
electronic transmission) by the stockholder himself or his duly authorized
attorney-in-fact; provided, however, that any such telex, telegram, cablegram,
facsimile transmission or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telex, telegram, cablegram, facsimile transmission or other means of electronic
transmission was authorized by the stockholder. If it is determined that such
telexes, telegrams, cablegrams, facsimile transmissions or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to the foregoing
sentences of this Section 2.7 may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing
or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission. Execution of the proxy may be
accomplished by the stockholder or his authorized officer, director, employee or
agent signing such writing or causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by facsimile
signature. No such proxy shall be voted or acted upon after three years from its
date, unless the 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 stockholder may revoke any proxy which is not irrevocable by attending
the meeting and voting in person or by filing an instrument in writing revoking
the proxy or another duly executed proxy bearing a later date with the Secretary
of the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless required by Section 2.10
of these Bylaws or unless the holders of a majority of the outstanding shares of
all classes of stock entitled to vote thereon present in person or by proxy at
such meeting shall so determine. At all meetings of stockholders for the
election of directors or otherwise, all elections and questions shall, unless
otherwise provided by law, by the Certificate of Incorporation or these Bylaws,
be decided by the vote of the holders of a majority of the outstanding shares of
all classes of stock entitled to vote thereon present in person or by proxy at
the meeting.
Section 2.8 Fixing Date for Determination of Stockholders of
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Record. In order that the Corporation may determine the stockholders entitled
to notice of, or to vote, at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. If no record date is fixed: (1)
the
3.
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; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting (to the extent such
action by the stockholders is permitted by these Bylaws) when no prior action by
the Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and (3) 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.
Section 2.9 List of Stockholders Entitled to Vote. The Secretary
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shall prepare and make, at least 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 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.
Section 2.10 Inspectors of Election. Before any meeting of
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stockholders, the Board of Directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or its adjournment.
If the Corporation has a class of voting stock that is (1) listed on a national
securities exchange, (2) authorized for quotation on an inter-dealer quotation
system of a registered national securities exchange, or (3) held of record by
more than 2,000 stockholders, the Board of Directors shall, in advance of any
meeting of stockholders, appoint one or more inspectors other than nominees for
office to act at the meeting. If no inspectors of election are appointed, the
chairman of the meeting may, and on the request of any stockholder or his proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one or three. If inspectors are appointed at a meeting on the
request of one or more stockholders or proxies, the holders of a majority of
shares or other proxies present at the meeting shall determine whether one or
three inspectors are to be appointed. If any person appointed as inspector
fails to appear or fails or refuses to act, the vacancy may be filled by
appointment by the Board of Directors before the meeting, or by the meeting
chairman at the meeting. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability.
4.
The duties of these inspectors shall be as follows: (i) ascertain the
number of shares outstanding and the voting power of each; (ii) determine the
shares represented at a meeting and the validity of proxies and ballots; (iii)
count all votes and ballots; (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors; and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxies or votes, nor any revocations thereof or
changes thereto shall be accepted by the inspectors after the closing of the
polls.
Except as otherwise required by applicable law, in determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted with those proxies, any
information provided in accordance with Section 2.7 hereof, ballots and the
regular books and records of the Corporation.
Section 2.11 Consent of Stockholders in Lieu of Meeting. Unless
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otherwise provided in the Certificate of Incorporation, any action required by
law to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice or
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
Board of Directors
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Section 3.1 Powers. The business and affairs of the Corporation
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shall be managed by or under the direction of the Board of Directors, except as
may be otherwise provided by law or in the Certificate of Incorporation.
Section 3.2 Number of Directors. Subject to the rights of the
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holders of any series of preferred stock, or any other series or class of stock
as set forth in the Certificate of Incorporation to elect directors under
specified circumstances, the Board of Directors shall consist
5.
of one or more members, the members thereof to be determined from time to time
by resolution of the Board of Directors. Directors need not be stockholders.
Section 3.3 Election and Term of Office. Each director shall hold
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office until the annual meeting of stockholders next succeeding his election and
until his successor is elected and qualified. No decrease in the authorized
number of directors shall shorten the term of any incumbent directors.
Section 3.4 Vacancies and Additional Directorships. Subject to the
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rights of the holders of any series of preferred stock, or any other series or
class of stock as set forth in the Certificate of Incorporation to elect
directors under specified circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, even though such majority is less than a
quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall, if elected to fill a vacancy, hold office for the
remainder of the full term of the departed director and, if elected to a newly
created directorship, hold office until the next annual meeting of stockholders,
and, in either case, until such director's successor shall have been elected and
qualified.
Section 3.5 Regular Meetings. Regular meetings of the Board of
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Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine and, if
so determined, notice thereof need not be given.
Section 3.6 Special Meetings. Special meetings of the Board of
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Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, if any, by the President,
or by any director. Reasonable notice thereof shall be given by the person or
persons calling the meeting.
Section 3.7 Telephonic Meetings Permitted. Members of the Board of
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Directors, or any committee thereof, as the case may be, may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Bylaw shall constitute presence in person at such meeting.
Section 3.8 Quorum; Vote Required for Action. At all meetings of
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the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business. 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 unless the Certificate of Incorporation or these
Bylaws shall require a vote of a greater number. In case at any meeting of the
Board of Directors a
6.
quorum shall not be present, the members of the Board of Directors present may
adjourn the meeting from time to time until a quorum shall attend.
Section 3.9 Organization. Meetings of the Board of Directors shall
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be presided over by the Chairman of the Board, if any, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 3.10 Action by Directors Without a Meeting. Unless
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otherwise restricted by the Certificate of Incorporation or these Bylaws, 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 of Directors or of such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee.
Section 3.11 Compensation of Directors. The Board of Directors
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shall have the authority to fix the compensation of directors.
Section 3.12 Removal. Subject to the rights of the holders of any
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series of preferred stock, or any other series or class of stock as set forth in
the Certificate of Incorporation to elect directors under specified
circumstances, subject to the provisions of the Certificate of Incorporation,
any director may be removed from office at any time, either with or without
cause, by the affirmative vote of the stockholders having a majority of the
voting power of the Corporation given at a special meeting of the stockholders
called for the purpose.
ARTICLE IV
Committees
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Section 4.1 Committees. The Board of Directors may, by resolution
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passed by a majority of the Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have power or authority in
7.
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of dissolution, removing or indemnifying directors or amending these
Bylaws; and, unless the resolution expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 4.2 Committee Rules. Unless the Board of Directors
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otherwise provides, each committee designated by the Board of Directors may
adopt, amend and repeal rules for the conduct of its business. In the absence
of a provision by the Board of Directors or a provision in the rules of such
committee to the contrary, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, the
vote of a majority of the members present at a meeting at the time of such vote
if a quorum is then present shall be the act of such committee, and in other
respects each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article III of these
Bylaws.
ARTICLE V
Officers
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Section 5.1 Officers; Election. As soon as practicable after the
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annual meeting of stockholders in each year, the Board of Directors shall elect
a President and a Secretary, and it may, if it so determines, elect from among
its members a Chairman of the Board. The Board of Directors may also elect one
or more Executive Vice Presidents, one or more Vice Presidents, one or more
Assistant Secretaries, a Treasurer or Chief Financial Officer and one or more
Assistant Treasurers or Assistant Chief Financial Officers and may give any of
them such further designations or alternate titles as it considers desirable.
Any number of offices may be held by the same person.
Section 5.2 Term of Office; Resignation; Removal; Vacancies.
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Except as otherwise provided in a resolution of the Board of Directors electing
any officer, each officer shall hold office until the first meeting of the Board
of Directors after the annual meeting of stockholders next succeeding his
election, and until his successor is elected and qualified or until his earlier
death, resignation or removal. Any officer may resign at any time upon written
notice to the Board of Directors or to the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. The Board of Directors may remove any
officer with or without cause at any time. Any such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
8.
death, resignation, removal or otherwise may be filled for the unexpired portion
of the term by the Board of Directors at any regular or special meeting.
Section 5.3 Powers and Duties. The officers of the Corporation
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shall have such powers and duties in the management of the Corporation as shall
be stated in these Bylaws or in a resolution of the Board of Directors which is
not inconsistent with these Bylaws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board of Directors. The Secretary shall have the duty to record the proceedings
of the meetings of stockholders, the Board of Directors and any committees in a
book to be kept for that purpose and shall have custody of the corporate seal of
the Corporation with the authority to affix such seal to any instrument
requiring it. The Board of Directors may require any officer, agent or employee
to give security for the faithful performance of his duties.
ARTICLE VI
Indemnification of Directors, Officers,
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Employees and Other Corporate Agents
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Section 6.1 Actions, Suits or Proceedings Other Than Those by or in
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the Right of the Corporation. The Corporation may indemnify, in the manner and
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to the full extent permitted by law, 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 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 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 of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. 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 believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 6.2 Actions, Suits or Proceedings by or in the Right of the
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Corporation. The Corporation may indemnify any person who was or is a party or
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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
9.
or agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise or by reason
of any action alleged to have been taken or omitted in such capacity against
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom 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 and except that 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 to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite adjudication of liability
but in view or all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
of the State of Delaware or such other court shall deem proper.
Section 6.3 Expenses Incurred. To the extent that a director,
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officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 6.1 and 6.2 above, or in defense of any claim, issue or matter therein,
he may be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 6.4 Determination of Indemnification. Any indemnification
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provided under Sections 6.1 and 6.2 above (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct in Sections 6.1 and 6.2 above. 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 a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders of the
Corporation.
Section 6.5 Advance of Expenses. Costs and expenses (including
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attorneys' fees) incurred by or on behalf of a director, officer, employee or
agent in defending or investigating a civil or criminal action, suit, proceeding
or investigation may be paid by the Corporation in advance of the final
disposition of such matter, if such director, officer, employee or agent shall
undertake in writing to repay any such advances in the event that it is
ultimately determined that he is not entitled to indemnification.
Section 6.6 Non-exclusivity. The right of indemnity and
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advancement of expenses provided herein shall not be deemed exclusive of any
other rights to which any person seeking indemnification or advancement of
expenses from the Corporation may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
10.
official capacity and as to action in another capacity while holding such
office. Any agreement for indemnification of or advancement of expenses to any
director, officer, employee or agent or other person may provide rights of
indemnification or advancement of expenses which are broader or otherwise
different from those set forth herein.
Section 6.7 Insurance. The Corporation may purchase and maintain
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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 or as a member of any committee or
similar body 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
the provisions of this Article or applicable law.
Section 6.8 Inclusion of Constituent Corporation. For purposes of
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this Article VI, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VI with respect to the resulting or, surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
Section 6.9 Inclusion of Other Terms. For purposes of this Article
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VI, reference to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any services as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to any employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation," as referred to in
this Article VI.
Section 6.10 Continuation of Indemnification. The indemnification
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and advancement of expenses provided by, or granted pursuant to, this Article VI
may, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and may inure
to the benefit of the heirs, executors and administrators of such a person.
11.
ARTICLE VII
Stock
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Section 7.1 Certificates. Every holder of stock in the Corporation
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shall be entitled to have a certificate signed by or in the name of the
Corporation by the Chairman of the Board, if any, or the President, or a Vice
President, and by the Treasurer or Chief Financial Officer or an Assistant
Treasurer or Assistant Chief Financial Officer, if any, or the Secretary or an
Assistant Secretary, of the Corporation, certifying the number of shares owned
by him in the Corporation. Any or all signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
Section 7.2 Lost, Stolen or Destroyed Stock Certificates; Issuance
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of New Certificates. The Corporation may issue a new certificate of stock in
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the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any 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.
ARTICLE VII
Miscellaneous
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Section 8.1 Fiscal Year. The fiscal year of the Corporation shall
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be determined by the Board of Directors.
Section 8.2 Seal. The Corporation may have a corporate seal which
----
shall have the name of the Corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of Directors. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
Section 8.3 Waiver of Notice of Meetings of Stockholders, Directors
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and Committees. Whenever notice is required to be given by law or under any
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provision of the Certificate of Incorporation or these Bylaws, a written waiver
thereof, 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
12.
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 regular or special meeting of the stockholders, directors, or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the Certificate of Incorporation or these Bylaws.
Unless either proper notice of a meeting of the Board of Directors, or any
committee thereof, has been given or else the persons entitled thereto have
waived such notice (either in writing or by attendance as set forth above), any
business transacted at such meeting shall be null and void.
Section 8.4 Interested Directors; Quorum. No contract or
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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 its 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 of Directors 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 of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum, (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. 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 8.5 Form of Records. Any records maintained by the
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Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 8.6 Amendment of Bylaws. These Bylaws may be amended or
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repealed, and new Bylaws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional Bylaws and may amend or
repeal any Bylaw whether or not adopted by them.
Section 8.7 Gender. Any reference to the masculine gender in these
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Bylaws shall be construed to mean the feminine gender, as the situation may
demand.
13.
CERTIFICATE OF ADOPTION OF BYLAWS
---------------------------------
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of River
Holding Corp., a Delaware corporation (the "Corporation"); that the foregoing
Bylaws were adopted as the Bylaws of the Corporation pursuant to the Unanimous
Written Consent of the Board of Directors of the Corporation dated as of April
3, 1998; and that said Bylaws are in full force and effect and have not been
modified, rescinded or repealed as of this date.
Executed this 3rd day of April, 1998.
/s/ Jon D. Ralph
_______________________________
Jon D. Ralph, Secretary
14.