BYLAWS
OF
VENTURE PACKAGING SOUTHEAST, INC.
Set forth below is the Bylaws (the "Bylaws") of Venture
Packaging Southeast, Inc., a South Carolina corporation (the "Company"),
for the government of the Company, the conduct of its affairs and the
management of its properties, as adopted by the shareholders of the
Company effective as of August 7, 1995.
ARTICLE I
OFFICES
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1.1 PRINCIPAL OFFICE.
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The principal office of the Company shall be at such place in the
County of Anderson, South Carolina, as may be designated from time to
time by the Board of Directors of the Company (the "Board").
1.2 OTHER OFFICES.
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The Company may also have offices at such other places within, as
well as without, the State of South Carolina as the Board may from time
to time determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
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2.1 ANNUAL MEETING.
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The annual meeting of the shareholders of the Company for the
purpose of fixing or changing the number of directors of the Company,
electing directors, considering financial statements and other reports
and transacting such other business as may properly come before the
meeting shall be held at such time as determined by the Board in each
year, but in no event later than six (6) months after the close of a
fiscal year in each year, beginning with the fiscal year of the Company
ending in 1996. Upon due notice, there may also be considered and acted
upon at the annual meeting of the shareholders of the Company any matter
which may properly be considered and acted upon at a special meeting of
the shareholders of the Company, in which case and for which purpose the
annual meeting of the shareholders of the Company shall also be
considered as, and shall be, a special meeting of the shareholders of the
Company. If the annual meeting of the shareholders of the Company is not
held or if directors of the Company are not elected thereat, a special
meeting of the shareholders may be called and held for that purpose.
2.2 SPECIAL MEETINGS.
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Special meetings of the shareholders of the Company may be called at
any time by (i) the Chairman of the Board or President of the Company,
(ii) a majority of the Board acting with or without a meeting or (iii)
the holder or holders of at least ten percent (10%) of all the shares of
the Company outstanding and entitled to vote thereat.
2.3 PLACE OF MEETINGS.
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Meetings of the shareholders of the Company shall be held at the
principal office of the Company in the County of Anderson, South
Carolina, unless the Board decides that a meeting shall be held at some
other place within or without the State of South Carolina and causes the
notice thereof to so state.
2.4 NOTICE OF MEETINGS.
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Unless waived, a written, printed or typewritten notice of the date,
time, place and purpose or purposes of any meeting of shareholders of the
Company shall be given to each shareholder entitled thereto not less than
ten (10) days nor more than sixty (60) days before the date fixed for the
meeting and as prescribed by law. Such notice shall be given either by
personal delivery or mailed to each shareholder of the Company entitled
to notice of or to vote at such meeting by or at the direction of the
Chairman of the Board of the Company, President of the Company, the
Secretary of the Company or any other person authorized by the Board or
required by these Bylaws to give such notice. If such notice is mailed,
it shall be directed, postage prepaid, to the shareholders of the Company
at their respective addresses as they appear upon the records of the
Company, and notice shall be deemed to have been given on the day so
mailed. If any meeting is adjourned to another time or place, no notice
as to such adjourned meeting need be given other than by announcement at
the meeting at which such an adjournment is taken. No business shall be
transacted at any such adjourned meeting except as might have been
lawfully transacted at the meeting at which such adjournment was taken.
All notices with respect to any shareholders of record in the name of two
or more persons may be given to one of such persons who was named first
upon the books of the Company, and notice so given shall be sufficient
and effective notice to all the holders of such shares.
Upon request in writing delivered either in person or by registered
mail to the Chairman of the Board, President or Secretary of the Company
by any person or persons entitled to call a meeting of the shareholders
of the Company, such officer shall cause to be given to the shareholders
entitled thereto notice of a meeting to be held on a date not less than
ten (10) days nor more than sixty (60) days after the receipt of such
request, as such officer, in his sole and absolute discretion, may fix.
If such notice is not given within five (5) days after the delivery or
mailing of such request, the person or persons calling the meeting may
fix the time of the meeting and give notice thereof as provided in this
Section 4.
Every person who by operation of law, transfer or otherwise shall
become entitled to any share or right or interest therein shall be bound
by every notice in respect of such share which, prior to his name and
address being entered upon the books of the Company as the registered
holder of such share, shall have been given to the person in whose name
such share appeared of record.
2.5 WAIVER OF NOTICE.
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Notice of the date, time, place and purpose or purposes of any
meeting of the shareholders of the Company, whether required by law, the
Articles of Incorporation of the Company (the "Articles") or these
Bylaws, may be waived in writing, either before or after the holding of
such meeting, by any shareholder entitled thereto, which writing shall be
filed with or entered upon the records of the meeting. Attendance of any
shareholder in any such meeting without protesting, prior to or at the
commencement of the meeting, the lack of proper notice shall be deemed to
be a waiver by such shareholder of notice of such meeting. If all of the
shareholders of the Company entitled to vote shall meet in person or by
proxy and consent to holding a meeting, such meeting shall be valid for
all purposes without call or notice, and at such meeting any action may
be properly taken.
2.6 SHAREHOLDERS ENTITLED TO NOTICE AND TO VOTE.
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If the record date shall not be fixed by the Board or the books of
the Company shall not be closed against transfers of shares pursuant to
statutory authority, the record date for the determination of
shareholders of the Company entitled to notice of or to vote at any
meeting of the shareholders of the Company shall be the date next
preceding the day on which notice is given, or the date next preceding
the day on which the meeting is held, as the case may be. Such record
date shall continue to be the record date for all adjournments of such
meeting unless a new record date shall be fixed and notice thereof and of
the date of the adjourned meeting be given to all shareholders of the
Company entitled to notice in accordance with the new record date so
fixed, which must occur if the meeting is adjourned to a date more than
one hundred twenty (120) days after the date fixed for the original
meeting.
2.7 QUORUM.
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The holders of shares entitling them to exercise a majority of the
voting power of the Company, present in person or represented by proxy,
shall constitute a quorum, except when a greater proportion is required
by law, the Articles or these Bylaws.
At any meeting at which a quorum is present, all questions and
business that shall come before the meeting shall be determined by the
vote of the holders of a majority of such voting shares as are
represented in person or by proxy, except when a greater proportion is
required by law, the Articles or these Bylaws. At any meeting of
shareholders, whether a quorum is present or not, the holders of a
majority of the voting shares represented by shareholders present in
person or by proxy may adjourn such meeting from time to time and from
place to place without notice other than by announcement at the meeting.
At any such adjourned meeting at which a quorum is present, any business
may be transacted which might be transacted at the meeting as originally
notified or held.
2.8 PROXIES.
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Any shareholder of record who is entitled to attend a meeting of
shareholders, or to vote thereat or to assent or give consents in
writing, shall be entitled to be represented at such meeting or to vote
thereat or to assent or give consents in writing, as the case may be, or
to exercise any other of his rights, by proxy or proxies appointed by a
writing signed by such shareholder, or his duly authorized attorney, as
provided by the laws of the State of South Carolina.
A facsimile, telegram, cablegram, wireless message or photogram
appearing to have been transmitted by a shareholder, or a photograph,
photostatic or equivalent reproduction of a writing appointing a proxy or
proxies, shall be a sufficient writing.
No appointment of a proxy shall be valid after the expiration of
eleven (11) months after it is made unless the writing specifies the date
on which it is to expire or the length of time it is to continue in
force. Unless the writing appointing a proxy or proxies otherwise
provides:
(a) Each and every proxy shall have the power of substitution,
and when three (3) or more persons are appointed, a majority of them or
their respective substitutes may appoint a substitute or substitutes to
act for all.
(b) If more than one proxy is appointed, then (i) with respect
to voting or giving consents at a shareholders' meeting, a majority of
such proxies as attends the meeting, or if only one attends then that one
may exercise all the voting and consenting authority thereat; and if an
even number attend and a majority do not agree on any particular issue,
each proxy so attending shall be entitled to exercise such authority with
respect to an equal number of shares; (ii) with respect to exercising any
other authority, a majority may act for all.
(c) A writing appointing a proxy shall not be revoked by the
death or incapacity of the maker unless before the vote is taken or the
authority granted is otherwise exercised, written notice of such death or
incapacity is given to the Company by the executor or the administrator
of the estate of such maker or by the fiduciary having control of the
shares in respect of which the proxy was appointed.
(d) The presence of a shareholder at a meeting shall not
operate to revoke a writing appointing a proxy. A shareholder, without
affecting any vote previously taken, may revoke such writing not
otherwise revoked by giving notice to the Company in writing or in open
meeting.
2.9 VOTING.
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At any meeting of shareholders and except as otherwise provided by
law or by the Articles or by these Bylaws, each shareholder of the
Company shall be entitled to one vote (or fraction thereof in case of
fractional shares) in person or by proxy for each share of the Company
(or fraction thereof in the case of fractional shares) registered in his
name on the books of the Company (i) on the date fixed pursuant to
subparagraph (vi) of Section 1 of Article III of these Bylaws as the
record date for the determination of shareholders entitled to vote at
such meeting, notwithstanding the prior or subsequent sale, or other
disposal of such share or shares or transfer of the same on the books of
the Company on or after the date so fixed, or (ii) if no such record date
shall have been fixed, then as of the date next preceding the date of
such meeting.
2.10 FINANCIAL REPORTS.
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Within 120 days after the close of each fiscal year of the Company,
the Company shall mail to each shareholder a copy of the financial
statements of the Company, which may be consolidated, meeting the
requirements of Section 33-16-200 of the SOUTH CAROLINA BUSINESS
CORPORATION ACT OF 1988, as amended (the "BCA") with an opinion appended
thereto meeting the requirements of Section 33-16-200(b) of the BCA.
2.11 REPORT OF CERTAIN SHARE TRANSACTIONS.
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If the Company issues or authorizes the issuance of shares for
promissory notes or for promises to render future services, the Company
shall report in writing to the shareholders the number of shares
authorized or issued, and the consideration received by the Company
therefor, with or before the notice of the next shareholder meeting.
2.12 ACTION WITHOUT MEETING.
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Any action which may be authorized or taken at any meeting of
shareholders may be authorized or taken without a meeting in a writing or
writings signed by all of the holders of shares who would be entitled to
notice of a meeting of the shareholders held for such purpose. Such
writing or writings shall be filed with or entered upon the records of
the Company.
2.13 ORGANIZATION OF MEETINGS.
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The Chairman of the Board of the Company, or, in his absence, the
President of the Company, or, in the absence of both of them, a Vice
President of the Company, shall call all meetings of the shareholders of
the Company to order and shall act as Chairman thereof; PROVIDED,
HOWEVER, if all of such persons are absent, then the shareholders of the
Company shall elect a Chairman. The Secretary of the Company, or, in his
absence, an Assistant Secretary, or, in the absence of both, a person
appointed by the Chairman of the meeting, shall act as Secretary of the
meeting and shall keep and make a record of the proceedings thereat.
2.14 ORDER OF BUSINESS.
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The order of business at all meetings of the shareholders of the
Company, unless waived or otherwise changed by the Chairman of the
meeting or the Board, shall be as follows: (i) call meeting to order;
(ii) selection of Chairman and/or Secretary, if necessary; (iii) proof of
notice of meeting and presentment of affidavit thereof; (iv) roll call,
including filing of proxies with the Secretary of the meeting; (v) upon
appropriate demand, appointment of inspectors of election; (vi) reading,
correction and approval of previously unapproved minutes; (vii) reports
of officers and committees; (viii) if annual meeting or meeting called
for that purpose, election of directors of the Company; (ix) unfinished
business, if adjourned meeting; (x) consideration in sequence of all
other matters set forth in the call for and written notice of the
meeting; (xi) any new business other than that set forth in the notice of
the meeting which shall have been submitted to the Secretary of the
Company in writing at least ten (10) days prior to the date of the
meeting; and, (xii) adjournment.
2.15 LIST OF SHAREHOLDERS.
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Before and at any meeting of shareholders of the Company, an
alphabetical list of shareholders, arranged by group and class or series,
showing the number and classes of shares held by each on the record date
applicable to such meeting, meeting the requirements of Section 33-7-200
of the BCA and subject to the requirements of Section 33-16-102(c) of the
BCA shall be made available on the request of any shareholder of the
Company.
ARTICLE III
DIRECTORS
3.1 GENERAL POWERS OF BOARD.
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The powers of the Company shall be exercised, its business and
affairs conducted, and its property controlled by the Board except where
the law, the Articles or these Bylaws require action to be authorized or
taken by the shareholders of the Company. Without prejudice to the
general powers conferred by or implied in the preceding sentence, the
Board shall have the power to: (i) fix, define and limit the powers and
duties of all officers of the Company and to fix the salaries of all
officers; (ii) appoint, and at their discretion, with or without cause,
to remove or suspend such subordinate officers, assistants, managers,
agents and employees of the Company as the Board may from time to time
deem advisable, and to determine their duties and fix their compensation;
(iii) require any officer, agent or employee of the Company to furnish a
bond for faithful performance in such amount and with such sureties as
the Board may approve; (iv) designate a depositary or depositaries of the
funds of the Company and the officer or officers of the Company or other
persons who shall be authorized to sign notes, checks, drafts, contracts,
deeds, mortgages and other instruments on behalf of the Company; (v)
appoint and remove transfer agents and/or registrars for the Company's
shares; (vi) fix a time not exceeding forty-five (45) days preceding the
date of any meeting of shareholders of the Company, or the date fixed for
the payment of any dividend or distribution, or the date for the
allotment of rights, or (subject to contract rights with respect thereto)
the date when any change or conversion or exchange of shares shall be
made or go into effect, as a record date for the determination of the
shareholders entitled to notice of and to vote at any such meeting, or
entitled to receive payment of any such dividend, distribution, or
allotment of rights, or to exercise the rights in respect to any such
change, conversion or exchange of shares, and, in such case, only the
persons who are' shareholders of record on the date so fixed shall be
entitled to notice of and to vote at such meeting, or to receive payment
of such dividend, distribution, or allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Company after any record date fixed as
aforesaid, or change of ownership of any shares either before or after
such record date, and such persons shall conclusively be deemed to be the
shareholders of the Company on such record date, notwithstanding notice
or knowledge to the contrary; and the Board may close the books of the
Company against transfer of shares during the whole or any part of such
period; and (vii) establish such rules and regulations respecting the
issuance and transfer of shares and certificates for shares as the Board
may consider reasonable.
3.2 NUMBER OF DIRECTORS.
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Until changed in accordance with the provisions of this Section, the
number of directors of the Company, none of whom need be shareholders,
shall be three (3). The number of directors of the Company may be fixed
or changed by resolution at any annual meeting of the shareholders of the
Company or at any special meeting of the shareholders of the Company
called for that purpose, adopted by the vote of the holders of shares,
present in person or by proxy, entitling them to exercise a majority of
the voting power on such proposal of the shares represented at such
meeting, but no reduction shall have the effect of removing any director
prior to the expiration of his term of office. In addition, the number
of directors of the Company may be fixed or changed by action of the
Board at a meeting called for that purpose at which a quorum is present
by a majority vote of the members of the Board present at the meeting;
PROVIDED, HOWEVER, that the Board may increase or decrease the size of
the Board by thirty percent (30%) or less from the number last approved
by the shareholders. The directors then in office may fill any
director's office that is created by an increase in the number of
directors and the number of directors elected shall be deemed to be the
number of directors fixed unless otherwise fixed by resolution adopted at
the meeting at which such directors are elected.
3.3 ELECTION OF DIRECTORS.
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Directors shall be elected at the annual meeting of shareholders,
but when the annual meeting is not held or directors are not elected
thereat, they may be elected at a special meeting called and held for
that purpose. Such election shall be by ballot whenever requested by any
shareholder entitled to vote at such election; but, unless such a request
is made, the election may be conducted in any manner approved at such
meeting. At each meeting of shareholders at which directors are to be
elected only persons nominated by an officer, director or in writing by a
shareholder at least five (5) days prior to the meeting shall be eligible
for election and those persons receiving the greatest number of votes
shall be directors.
3.4 TERM OF OFFICE.
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Directors shall hold office until the annual meeting next succeeding
their election and until their successors are elected and qualified or
until their earlier resignation, removal from office or death.
3.5 VACANCIES.
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Vacancies in the Board may be filled by a majority vote of the
remaining directors until an election to fill such vacancies is had.
Shareholders entitled to elect directors shall have the right to fill any
vacancy in the Board (whether the same has been temporarily filled by the
remaining directors or not) at any meeting of the shareholders called for
that purpose, and any directors elected at any such meeting of
shareholders shall serve until the next annual election of directors and
until their successors are elected and qualified.
3.6 RESIGNATION FROM THE BOARD.
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Resignation from the Board shall be deemed to take effect
immediately upon its being received by any incumbent corporate officer
other than an officer who is also the resigning director, unless some
other time is specified therein.
3.7 QUALIFICATIONS.
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Directors need not be residents of South Carolina or shareholders of
the Company.
3.8 REMOVAL.
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Directors shall be subject to removal as provided by law or by other
lawful procedures and nothing herein shall be construed to prevent the
removal of any or all directors in accordance therewith.
3.9 MEETINGS OF THE BOARD.
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A regular meeting of the Board may be held immediately following the
adjournment of each shareholders' meeting at which directors are elected.
The holding of such shareholders' meeting shall constitute notice of such
Board meeting and such meeting shall be held without further notice.
Other regular meetings shall be held at such other times and places as
may be fixed by the Board. Special meetings of the Board may be held at
any time upon call of the Chairman of the Board, President, or any two
members of the Board. Notice of any special meeting of the Board of
Directors shall be mailed to each director, addressed to him at his
residence or usual place of business, at least two (2) days before the
day on which the meeting is to be held, or shall be sent to him at such
place by facsimile, telegraph, cable, radio or wireless, or be given
personally or by telephone, not later than the day before the day on
which the meeting is to be held. Every such notice shall state the time
and place of the meeting but need not state the purpose or purposes
thereof. Notice of any meeting of the Board need not be given to any
director, however, if waived by him in writing or by facsimile,
telegraph, cable, radio or wireless, whether before or after such
meeting, or if he shall be present at such meeting without protest prior
to the commencement thereof; and any meeting of the Board shall be a
legal meeting without any notice thereof having been given if all the
directors shall be present thereat.
All meetings of the Board shall be held at the office of the Company
in the County of Anderson, South Carolina, or at such other place, within
or without the State of South Carolina, as the Board may determine from
time to time and as may be specified in the notice thereof.
3.10 QUORUM.
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A majority of the Board shall constitute a quorum for the
transaction of business; PROVIDED, HOWEVER, that whenever less than a
quorum is present at the time and place appointed for any meeting of the
Board, a majority of those present may adjourn the meeting from time to
time, without notice other than by announcement at the meeting, until a
quorum shall be present. At any meeting at which a quorum is present,
all acts, questions and business which may come before the meeting shall
be determined by a majority of votes cast by the members of the Board
present at such meeting, unless the vote of a greater number is required
by the Articles or these Bylaws.
3.11 ACTION WITHOUT A MEETING.
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Any action which may be authorized or taken at a meeting of the
directors may be authorized or taken without a meeting in a writing or
writings signed by all the directors, which writing or writings shall be
filed with or entered upon the records of the Company.
3.12 COMPENSATION.
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The directors, as such, shall not receive any salary for their
services, but by resolution of the Board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or
special meeting of the Board; PROVIDED, HOWEVER, that nothing herein
contained shall be construed to preclude any director from serving the
Company in any other capacity and receiving compensation therefor.
Members of the executive committee or of any standing or special
committee may by resolution of the Board be allowed such compensation for
their services as the Board may deem reasonable, and additional
compensation may be allowed to directors for special services rendered.
3.13 ATTENDANCE AT MEETINGS BY PERSONS WHO ARE NOT DIRECTORS.
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Unless waived by a majority of the members of the Board in
attendance, not less than twenty-four (24) hours before any regular or
special meeting of the Board, any director who desires the presence at
such meeting of not more than two (2) persons who are not directors shall
so notify all other directors, request the presence of such person or
persons at the meeting and state the reason in writing. Such person or
persons shall not be permitted to attend the meeting of the Board unless
a majority of the directors in attendance vote to admit such person to
the meeting. Such vote shall constitute the first order of business for
any such meeting of the Board. Such right to attend, whether granted by
waiver or vote, may be revoked at any time during any such meeting by the
vote of a majority of the members of the Board in attendance.
Notwithstanding anything contained in this Section to the contrary, any
shareholder of the Company shall be permitted to attend any meeting of
the Board and shall receive not less than twenty-four (24) hours notice
of such meeting given in accordance with Section 9 of this Article;
PROVIDED, HOWEVER, that such shareholder(s) may be excused at any time by
the action of a majority of the members of the Board in attendance.
3.14 COMMITTEES.
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The Board may by resolution provide for such standing or special
committees as it deems desirable, and discontinue the same at its
pleasure. Each such committee shall have such powers and perform such
duties, not inconsistent with law, as may be delegated to it by the
Board. Vacancies in such committees shall be filled by the Board or as
it may provide.
ARTICLE IV
OFFICERS
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4.1 GENERAL PROVISIONS.
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The Board shall elect a President, such number of Vice Presidents as
the Board may from time to time determine, a Secretary and a Treasurer,
and, in its discretion, a Chairman of the Board. The Board may from time
to time create such other offices and appoint such other officers,
subordinate officers and assistant officers as it may determine. The
Chairman of the Board shall be, but the other officers need not be,
chosen from among the members of the Board. Any two or more of such
offices, other than that of President and Vice President, Secretary and
Assistant Secretary, or Treasurer and Assistant Treasurer, may be held by
the same person, and any officer may execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required to be
executed, acknowledged or verified by two or more officers. All
officers, as between themselves and the Company, shall respectively have
such authority and perform such duties as are customarily incident to
their respective offices, and as may be specified from time to time by
these Bylaws and the Board, regardless of whether such authority and
duties are customarily incident to such office. In the absence of any
officer of the Company, or for any other reason the Board may deem
sufficient, the powers or duties of such officer or any of them may be
delegated to any other officer or to any director of the Company. The
Board may from time to time delegate to any officer authority to appoint
and remove subordinate officers and to prescribe their authority and
duty. The powers and duties of the officers described in Article IV of
these Bylaws are subject to change from time to time by the Board.
4.2 TERM OF OFFICE.
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The officers of the Company shall hold office at the pleasure of the
Board, and unless sooner removed by the Board, until the meeting of the
Board following the date of their election and until their successors are
elected and qualified. The Board may remove any officer at any time,
with or without cause, by a majority vote. A vacancy in any office,
however created, shall be filled by the Board.
4.3 CHAIRMAN OF THE BOARD.
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The Chairman of the Board, if one be elected, shall preside at all
meetings of the Board and shall have such other powers and duties as may
be prescribed by the Board.
4.4 PRESIDENT.
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The President shall be the chief executive and operating officer of
the Company and shall exercise supervision over the business of the
Company and over its several officers, subject, however, to the control
of the Board. He or she shall preside at all meetings of shareholders
and, in the absence of, or if a Chairman of the Board shall not have been
elected, shall also preside at meetings of the Board. He or she shall
have authority to sign all certificates for shares and all deeds,
mortgages, bonds, contracts, notes and other instruments requiring his
signature; and shall have all the powers and duties prescribed by the
SOUTH CAROLINA BUSINESS CORPORATION ACT OF 1988, as amended (the "Act")
and such others as the Board may from time to time assign to him or her.
4.5 VICE PRESIDENTS.
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The Vice Presidents shall perform such duties as are conferred upon
them by these Bylaws or as may from time to time be assigned to them by
the Board or the President. At the request of the President, or in his
or her absence or disability, the Vice President designated by the
President (or in the absence of such designation, the Vice President
designated by the Board) shall perform all the duties of the President,
and when so acting, shall have all the powers of the President. The
authority of Vice Presidents to sign in the name of the Company all
certificates for shares and authorized deeds, mortgages, bonds,
contracts, notes and other instruments shall be coordinated with like
authority of the President. Any one or more of the Vice Presidents may
be designated as an "Executive Vice President."
4.6 SECRETARY.
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The Secretary shall keep minutes of all the proceedings of the
shareholders and Board and shall make proper record of the same, which
shall be attested by him or her; sign all certificates for shares, and
all deeds, mortgages, bonds, contracts, notes, and other instruments
executed by the Company requiring his or her signature; give notice of
meetings of shareholders and directors; produce on request at each
meeting of shareholders for the election of directors a certified list of
shareholders arranged in alphabetical order; keep such books as may be
required by the Board; and perform such other and further duties as may
from time to time be assigned to him or her by the Board or by the
President.
4.7 TREASURER.
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The Treasurer shall have general supervision of all finances; he or
she shall receive and have in charge all money, bills, notes, deeds,
leases, mortgages and similar property belonging to the Company and shall
do with the same as may from time to time be required by the Board of
Directors. He or she shall cause to be kept adequate and correct
accounts of the business transactions of the Company, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses,
stated capital, and shares, together with such other accounts as may be
required, and, upon the expiration of his or her term of office, shall
turn over to his or her successor or to the Board all property, books,
papers and money of the Company in his or her hands; and he or she shall
perform such other duties as from time to time may be assigned to him or
her by the Board.
4.8 ASSISTANT AND SUBORDINATE OFFICERS.
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The Board may appoint such assistant and subordinate officers as it
may deem desirable. Each such officer shall hold office during the
pleasure of the Board and perform such duties as the Board may prescribe
to appoint prescribe their compensation. The Board may, from time to
time, authorize any officer and remove assistant and subordinate
officers, to authority and duties, and to fix their compensation.
ARTICLE V
CERTIFICATES FOR SHARES
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5.1 FORM AND EXECUTION.
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Certificates for shares shall be issued to each shareholder in such
form as shall be approved by the Board. Such certificates shall be
signed by the Chairman of the Board, the President or a Vice President
and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Company, which certificates shall certify the
number and class of shares held by the shareholder in the Company, but no
certificate for shares shall be issued and delivered until such shares
are fully paid. When such a certificate is countersigned by an
incorporated transfer agent or registrar, the signature of any of said
officers of the Company may be facsimile, engraved, stamped or printed.
Although any officer of the Company whose manual or facsimile signature
is affixed to a share certificate shall cease to be such officer before
the certificate is delivered, such certificate, nevertheless, shall be
effective in all respects when delivered.
Such certificate for shares shall be transferable in person or by
attorney, but, except as hereinafter provided in the case of lost,
mutilated or destroyed certificates, no transfer of shares shall be
entered upon the records of the Company until the previous certificate,
if any, given for the same shall have been surrendered and canceled.
The Board shall have authority to make such rules and regulations,
not inconsistent with law, the Articles or these Bylaws, as it deems
expedient concerning the issuance, transfer and registration of
certificates for shares and the shares represented thereby and may
appoint transfer agents and registrars thereof.
5.2 LOST, MUTILATED OR DESTROYED CERTIFICATES.
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If any certificate for shares is lost, mutilated or destroyed, the
Board may authorize the issue of a new certificate in place thereof upon
such terms and conditions as it may deem advisable. The Board in its
discretion may refuse to issue such new certificates until the Company
has been indemnified to its satisfaction and until it is protected to its
satisfaction by a final order or decree of a court of competent
jurisdiction.
5.3 REGISTERED SHAREHOLDERS.
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A person in whose name shares are of record on the books of the
Company shall conclusively be deemed the unqualified owner thereof for
all purposes and to have capacity to exercise all rights of ownership.
Neither the Company nor any transfer agent of the Company shall be bound
to recognize any equitable interest in or claim to such shares on the
part of any other person, whether disclosed upon such certificate or
otherwise, nor shall they be obliged to see to the execution of any trust
or obligation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICER
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Each person who at any time is or shall have been a director and, at
the option of the Board, each person who at any time is or shall have
been an officer, employee or agent of the Company, or is or shall have
been serving at the request of the Company as a director, trustee,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, and his heirs, executors and
administrators shall be indemnified by the Company in accordance with and
to the fullest extent permitted by the Act as in effect at the time of
the adoption of these Bylaws or as amended from time to time thereafter.
The foregoing right of indemnification shall not be deemed exclusive of
other rights to which any director, officer, trustee, employee, agent or
other person may be entitled in any capacity as a matter of law or under
any regulation, agreement, vote of the Board or otherwise. If authorized
by the Board, the Company may purchase and maintain insurance against
liability on behalf of any such person to the full extent permitted by
the Act as in effect at the time of the adoption of these Bylaws or as
amended from time to time thereafter. The right of indemnification
conferred herein shall be extended to any threatened action, suit or
proceeding, and the failure to institute it shall be deemed its final
determination. Advances may be made by the Company against costs,
expenses and fees, as and upon the terms determined by the Board.
If the Company indemnifies or advances expenses to a director
pursuant to Section 33-8-510, 33-8-530 or 33-8-540 or Article VI hereof
in connection with a proceeding by or in the right of the Company, the
Company shall report the indemnification or advance in writing to the
shareholders with or before the notice of the next shareholder meeting.
ARTICLE VII
FISCAL YEAR
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The fiscal year of the Company will end on such day as may be fixed
from time to time by the Board.
ARTICLE VIII
AMENDMENTS
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These Bylaws may be amended, repealed or added to at any meeting of
shareholders called for that purpose by the affirmative vote of the
holders of record of shares entitling them to exercise a majority of the
voting power on such proposal or, without a meeting, by the written
consent of the holders of record of shares entitling them to exercise a
majority of the voting power on such proposal; PROVIDED, HOWEVER, that if
an amendment or addition is adopted by written consent without a meeting
of the shareholders, it shall be the duty of the Secretary of the Company
to enter the amendment or addition in the records of the Company, and to
mail a copy of such amendment or addition to each shareholder of record
who would be entitled to vote thereon and did not participate in the
adoption thereof; PROVIDED, FURTHER, HOWEVER, that no amendment or
addition to these Bylaws shall be made if such amendment or addition is
inconsistent with the Articles.
ARTICLE IX
SEAL
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The Board may, in its discretion, provide a suitable seal containing
the name of the Company. If deemed advisable by the Board, duplicate
seals may be provided and kept for the purpose of the Company.
ARTICLE X
CONSISTENCY WITH ARTICLES AND CORPORATION AQREEMENT
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If any provision of these Bylaws shall be inconsistent with the
Articles as in effect at the time of the adoption of these Bylaws or as
amended from time to time, the Articles, as in effect at the time, shall
govern and control. If any provision of these Bylaws shall be
inconsistent with the 1995 Close Corporation Agreement (the "Corporation
Agreement") made and entered into as of August 7, 1995 among the Company
and the shareholders of the Company, a copy of which is on file with the
Secretary of the Company, the Corporation Agreement, as in effect at the
time, shall Govern and control.
ARTICLE XI
MISCELLANEOUS
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11.1 SECTION HEADINGS.
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The headings contained in these Bylaws are for reference purposes
only and shall not be construed to be part of and/or shall not affect in
any way the meaning or interpretation of these Bylaws.
11.2 GENDER.
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Unless the context otherwise requires a different meaning, words of
a masculine gender shall be deemed and construed to include correlative
words of the feminine and neuter genders, words importing the singular
number shall include the plural number and vice versa, and the terms
"hereof", "hereby", "hereto", "hereunder", "herein" and similar terms
mean these Bylaws.
11.3 COMPUTATION OF DAYS.
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Unless otherwise provided in these Bylaws, in computing the number
of days for any purpose under these Bylaws, all days shall be counted
including Saturdays, Sundays and holidays.
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