BY-LAWS
OF
NWS, INC.
ARTICLE I
OFFICES
SECTION 1.1 Illinois Registered Office. The corporation shall continuously
maintain in the State of Illinois a registered office and registered agent whose
office is identical with such registered office.
SECTION 1.2 Other Offices. The corporation may have other offices within or
without the state.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 Annual Meeting. An annual meeting of the shareholders shall be
held on the 1st Thursday in April of each year for the purpose of electing
directors and for the transaction of such other business as may come before the
meeting. If the day fixed for the annual meeting shall be a legal holiday, such
meeting shall be held on the next succeeding business day.
SECTION 2.2 Special Meetings. Special meetings of the shareholders may be
called either by the president, the board of directors or by the holders of a
majority of all outstanding shares of the corporation, for the purpose or
purposes stated in the call of the meeting.
SECTION 2.3 Place of Meeting. The board of directors may designate any
place as the place of meeting for any annual meeting or for any special meeting
called by the board of directors.
SECTION 2.4 Informal Action By Shareholders. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed
(a) by the holders of outstanding shares 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 voting, or
(b) by all of the shareholders entitled to vote with respect to the
subject matter thereof.
If such consent is signed by less than all of the shareholders entitled to
vote, then such consent shall become effective only if at least five days prior
to the execution of the consent a notice in writing is delivered to all the
shareholders entitled to vote with respect to the subject matter thereof and,
after the effective date of the consent, prompt notice of the taking of the
corporation action without a meeting by less than unanimous written consent
shall be delivered in writing to those shareholders who have not consented in
writing.
SECTION 2.5 Notice of Meetings. Written notice stating 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, shall be delivered not less than ten
nor more than sixty days before the date of the meeting, or in the case of a
merger, consolidation, share exchange, dissolution or sale, lease or exchange of
assets, not less than twenty nor more than sixty days before the meeting, either
personally or by mail, by or at the direction of the president, or the
secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited with the United States Postal Service, addressed
to the shareholder at his address as it appears on the records of the
corporation, with postage thereon prepaid. 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.
SECTION 2.6 Fixing of Record Date. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or to receive payment of any dividend, or any rights in
respect of any change, conversion or exchange of shares or for the purpose of
any other lawful action, the board of directors of the corporation may fix in
advance a record date which shall not be more than sixty days and, for a meeting
of shareholders, not less than ten days, or in the case of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of assets,
not less than twenty days, immediately preceding the date of such meeting. If no
record date is fixed, the record date for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders shall be the date
on which notice of the meeting is mailed, and the record date for the
determination of shareholders for any other purpose shall be the date on which
the board of directors adopts the resolution relating thereto. A determination
of shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting.
SECTION 2.7 Voting Lists. The officer or agent having charge of the
transfer books for shares of the corporation shall make, within twenty days
after record date or ten days before each meeting of shareholders, whichever is
earlier, a complete list of the shareholders entitled to vote at such meeting,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of the shareholder, which list, for a period of ten days
prior to such meeting, shall be kept on file at the registered office of the
corporation and shall be open to inspection by any shareholder for any purpose
germane to the meeting, at any time during usual business hours. Such list shall
also be produced and kept open at the time and place of the meeting and may be
inspected by any shareholder during the whole time of the meeting. The original
share ledger or transfer book, or a duplicate thereof kept in this State, shall
be prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of shareholders.
SECTION 2.8 Voting of Shares. Except as otherwise provided in the articles
of incorporation or these by-laws, each outstanding share, regardless of class,
shall be entitled to one vote upon each matter submitted to vote at a meeting of
shareholders.
SECTION 2.9 Voting of Shares by Certain Holders. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine.
(a) Shares standing in the name of a deceased person, a minor ward or
an incompetent person, may be voted by his administrator, executor, court
appointed guardian, or conservator, either in person or by proxy without a
transfer of such shares into the name of such administrator, executor,
court appointed guardian, or conservator. Shares standing in the name of a
trustee may be voted by him, either in person or by proxy.
(b) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
(c) A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
(d) Any number of shareholders may create a voting trust for the
purpose of conferring upon a trustee or trustees the right to vote or
otherwise represent their share, for a period not to exceed ten years, by
entering into a written voting trust agreement specifying the terms and
conditions of the voting trust, and by transferring their shares to such
trustee or trustees for the purpose of the agreement. Any such trust
agreement shall not become effective until a counterpart of the agreement
is deposited with the corporation at its registered office. The counterpart
of the voting trust agreement so deposited with the corporation shall be
subject to the same right of examination by a shareholder of the
corporation, in person or by agent or attorney, as are the books and
records of the corporation, and shall be subject to examination by any
holder of a beneficial interest in the voting trust, either in person or by
agent or attorney, at any reasonable time for any proper purpose.
(e) Shareholders may provide for the voting of their shares by signing
an agreement for that purpose. A voting agreement under this subsection is
not subject to the provisions of subsection (d) above.
(f) Shares of its own stock belonging to this corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but
shares of its own stock held by it in a fiduciary capacity may be voted and
shall be counted in determining the total number of outstanding shares at
any given time.
SECTION 2.10 Proxies. Each shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
SECTION 2.11 Quorum. The holders of a majority of the outstanding shares of
the corporation, present in person or represented by proxy, shall constitute a
quorum at any meeting of shareholders; provided that if less than a majority of
the outstanding shares are represented at said meeting, a majority of the shares
so represented may adjourn the meeting at any time without further notice. If a
quorum is present, the affirmative vote of the majority of the shares
represented at the meeting shall be the act of the shareholders, unless the vote
of a greater number or voting by classes is required by the Illinois Business
Corporation Act of 1983, as amended, the articles of incorporation, or these
by-laws. At any adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the original
meeting. Withdrawal of shareholders from any meeting shall not cause failure of
a duly constituted quorum at that meeting.
SECTION 2.12 Inspectors. At any meeting of shareholders, the chairman of
the meeting may, or upon the request of any shareholder shall, appoint one or
more persons as inspectors for such meeting.
(a) Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the validity
and effect of proxies; count all votes and report the results; and do such
other acts as are proper to conduct the election and voting with
impartiality and fairness to all the shareholders.
(b) Each report of an inspector shall be in writing and signed by him
or by a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or
inspectors on the number of shares represented at the meeting and the
results of the voting shall be prima facie evidence thereof.
SECTION 2.13 Voting By Ballot. Voting on any question or in any election
may be by voice unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
SECTION 3.1 General Powers. The business of the corporation shall be
managed by, or under the direction of, its board of directors.
SECTION 3.2 Number, Tenure and Qualifications. The number of directors of
the corporation shall be three (3). Each director shall hold office until the
next annual meeting of shareholders or, thereafter, until his successor shall
have been elected. Directors need not be residents of Illinois or shareholders
of the corporation. The number of directors may be increased or decreased from
time to time by the amendment of this section; but no decrease shall have the
effect of shortening the term of any incumbent director. A director may resign
at any time by giving written notice to the board of directors, its chairman, or
to the president or secretary of the corporation. A resignation is effective
when the notice is given unless the notice specifies a future date. The pending
vacancy may be filled before the effective date, but the successor shall not
take office until the effective date.
SECTION 3.3 Quorum. A majority of the number of directors fixed by these
by-laws shall constitute a quorum for transaction of business at any meeting of
the board of directors, provided that if less than a majority of such number of
directors are present at said meeting, a majority of the directors present may
adjourn the meeting at any time without further notice.
SECTION 3.4 Manner of Acting. The act of the 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 act of a greater number is required by statute, these
by-laws, or the articles of incorporation.
SECTION 3.5 Regular Meetings. A regular meeting of the board of directors
shall be held without other notice than this by-law, immediately after the
annual meeting of shareholders. The board of directors may provide, by
resolution, the time and place for holding of additional regular meetings
without other notice than such resolution.
SECTION 3.6 Special Meetings. Special meetings of the board of directors
may be called by or at the request of the president or any one or more
directors. The person or persons authorized to call special meetings of the
board of directors may fix any place as the place for holding any special
meeting of the board of directors called by them.
SECTION 3.7 Notice. Notice of any special meeting shall be given at least
two (2) days previous thereto by written notice to each director at his business
address. If mailed, such notice shall be deemed to be delivered when deposited
with the United States Postal Service so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegram company. The attendance
of a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose of
objecting 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 board of directors need be specified
in the notice or waiver of notice of such meeting.
SECTION 3.8 Vacancies. Any vacancy occurring in the board of directors and
any directorship to be filled by reason of an increase in the number of
directors, may be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose.
SECTION 3.9 Removal of Directors. One or more of the directors may be
removed, with or without cause, at a meeting of shareholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote at an election of directors, except as follows:
(a) No director shall be removed at a meeting of shareholders unless
the notice of such meeting shall state that a purpose of the meeting is to
vote upon the removal of one or more directors named in the notice. Only
the named director or directors may be removed at such meeting.
(b) If a director is elected by a class or series of shares, he or she
may be removed only by the shareholders of that class or series.
SECTION 3.10 Committees. A majority of the directors may create one or more
committees and appoint members of the board to serve on the committee or
committees. Each committee shall have two or more members, who serve at the
pleasure of the board. Unless the appointment by the board of directors requires
a greater number, a majority of any committee shall constitute a quorum and a
majority of a quorum is necessary for committee action.
To the extent specified by the board of directors, each committee may
exercise the authority of the board of directors in the management of the
corporation, except as otherwise prohibited by law. Vacancies in the membership
of any committee shall be filled by the board of directors at a regular or
special meeting of the board. The committees shall keep regular minutes of their
proceedings and report the same to the board when required.
SECTION 3.11 Action Without a Meeting. Any action required to be taken at a
meeting of the board of directors, or any other action which may be taken at a
meeting of the board of directors, or of any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the directors entitled to vote with respect to the
subject matter thereof, or by all the members of such committee, as the case may
be. Any such consent signed by all the directors or all the members of the
committee shall have the same effect as a unanimous vote, and may be stated as
such in any document filed with the Secretary of State or with anyone else.
SECTION 3.12 Compensation. The board of directors, by the affirmative vote
of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers, or otherwise. By resolution of the board of directors, the directors
may be paid their expenses, if any, of attendance at each meeting of the board.
No such payment previously mentioned in this section shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 3.13 Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the secretary of the corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
ARTICLE IV
OFFICERS
SECTION 4.1 Number. The officers of the corporation shall be a president, a
secretary, a treasurer, a vice president, and, if desired, any number of vice
presidents, treasurers, assistant treasurers, assistant secretaries or other
officers as may be elected by the board of directors. Any two or more offices
may be held by the same person.
SECTION 4.2 Election and Term of Office. The officers of the corporation
shall be elected or appointed annually by the board of directors at the first
meeting of the board of directors held after each annual meeting of
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be. Vacancies
may be filled or new offices created and filled at any meeting of the board of
directors. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Election
of an officer shall not of itself create contract rights.
SECTION 4.3 Removal. Any officer elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4.4 President. The president shall be the principal executive
officer of the corporation. Subject to the direction and control of the board of
directors, the president shall be in charge of the business of the corporation;
shall see that the resolutions and directions of the board of directors are
carried into effect except in those instances in which that responsibility is
specifically assigned to some other person by the board of directors; and, in
general, shall discharge all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time to time.
The president shall preside at all meetings of the shareholders and of the board
of directors. Except in those instances in which the authority to execute is
expressly delegated to another officer or agent of the corporation or a
different mode of execution is expressly prescribed by the board of directors or
these by-laws, the president may execute for the corporation certificates for
its shares, and any contracts, deeds, mortgages, bonds, or other instruments
which the board of directors has authorized to be executed, and the president
may accomplish such execution either under or without the seal of the
corporation and either individually or with the secretary, any assistant
secretary, or any other officer thereunto authorized by the board of directors,
according to the requirements of the form of the instrument. He may vote all
securities which the corporation is entitled to vote except as and to the extent
such authority shall be vested in a different officer or agent of the
corporation by the board of directors.
SECTION 4.5 The Vice-Presidents. The vice-president (or in the event there
be more than one vice-president, each of the vice-presidents) shall assist the
president in the discharge of duties as the president may direct and shall
perform such other duties as from time to time may be assigned to the
vice-president by the president or by the board of directors. In the absence of
the president or in the event of his inability or refusal to act, the
vice-president (or in the event there be more than one vice-president, the
vice-presidents in the order designated by the board of directors, or by the
president if the board of directors has not made such a designation, or in the
absence of any designation, then in the order of seniority of tenure as
vice-president) shall perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
president. Except in those instances in which the authority to execute is
expressly delegated to another officer or agent of the corporation or a
different mode of execution is expressly prescribed by the board of directors or
these by-laws, the vice-president (or each of them if there are more than one)
may execute for the corporation certificates for its shares and any contracts,
deeds, mortgages, bonds or other instruments which the board of directors has
authorized to be executed, and may accomplish such execution either under or
without the seal of the corporation and either individually or with the
secretary, any assistant secretary, or any other officer thereunto authorized by
the board of directors, according to the requirements of the form of the
instrument.
SECTION 4.6 The Treasurer. The treasurer shall be the principal accounting
and financial officer of the corporation. The treasurer shall:
(a) have charge of and be responsible for the maintenance of adequate
books of account for the corporation;
(b) have charge and custody of all funds and securities of the
corporation, and be responsible therefore and for the receipt and
disbursement thereof; and
(c) perform all the duties incident to the office of treasurer and
such other duties as from time to time may be assigned to him by the
president or by the board of directors.
If required by the board of directors, the treasurer shall give a bond for the
faithful discharge of the treasurer's duties in such sum and with such surety or
sureties as the board of directors may determine.
SECTION 4.7 The Secretary. The secretary shall:
(a) record the minutes of the shareholders' and of the board of
directors' meetings in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal of the
corporation;
(d) keep a register of the post-office address of each shareholder
which shall be furnished to the secretary by such shareholder;
(e) sign with the president, or a vice-president, or any other officer
thereunto authorized by the board of directors, certificates for shares of
the corporation, the issue of which shall have been authorized by the board
of directors, and any contracts, deeds mortgages, bonds, or other
instruments which the board of directors has authorized to be executed,
according to the requirements of the form of the instrument, except when a
different mode of execution is expressly prescribed by the board of
directors or these by-laws;
(f) otherwise certify the by-laws, resolutions of the shareholders and
board of directors and committees thereof, and other documents of the
corporation as true and correct copies thereof;
(g) have general charge of the stock transfer books of the
corporation; and
(h) perform all duties incident to the office of secretary and such
other duties as from time to time may be assigned to him or her by the
president or by the board of directors.
SECTION 4.8 Assistant Treasurers and Assistant Secretaries. The assistant
treasurers and assistant secretaries shall perform such duties as shall be
assigned to them by the treasurer or the secretary, respectively, or by the
president or the board of directors. The assistant secretaries may sign with the
president, or a vice-president, or any other officer thereunto authorized by the
board of directors, certificates for shares of the corporation, the issue of
which shall have been authorized by the board of directors, and any contracts,
deeds, mortgages, bonds, or other instruments which the board of directors has
authorized to be executed, according to the requirements of the form of the
instrument, except when a different mode of execution is expressly proscribed by
the board of directors or these by-laws. The assistant treasurers shall
respectively, if required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the board of
directors shall determine.
SECTION 4.9 Salaries. The salaries of the officers shall be fixed from time
to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 5.1 Contracts. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 5.2 Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 5.3 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the board of directors.
SECTION 5.4 Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositories as the board of directors may
select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1 Certificates for Shares. Certificates representing shares of
the corporation shall be signed by the president or a vice-president or by such
officer as shall be designated by resolution of the board of directors and by
the secretary or an assistant secretary, and shall be sealed with the seal or a
facsimile of the seal of the corporation. If both of the signatures of the
officers be by facsimile, the certificate shall be manually signed by or on
behalf of a duly authorized transfer agent or clerk. Each certificate
representing shares shall be consecutively numbered or otherwise identified, and
shall also state the name of the person to whom issued, the number and class of
shares (with designation of series, if any), the date of issue, and that the
corporation is organized under Illinois law. If the corporation is authorized
and does issue shares of more than one class or of series within a class, the
certificate shall also contain such information or statement as may be required
by law. The name and address of each shareholder, the number and class of shares
held and the date on which the certificates for the shares were issued shall be
entered on the books of the corporation. The person in whose name shares stand
an the books of the corporation shall be deemed the owner thereof for all
purposes as regard the corporation.
SECTION 6.2 Lost Certificates. If a certificate representing shares has
allegedly been lost or destroyed the board of directors may in its discretion,
except as may be required by law, direct that a new certificate be issued upon
such indemnification and other reasonable requirements as it may impose.
SECTION 6.3 Transfers of Shares. Transfers of shares of the corporation
shall be recorded on the books of the corporation and, except in the case of a
lost or destroyed certificate, on surrender for cancellation of the certificate
for such shares. A certificate presented for transfer must be duly endorsed and
accompanied by proper guaranty of signature and other appropriate assurances
that the endorsement is effective.
ARTICLE VII
FISCAL YEAR
SECTION 7.1 Resolution of Directors. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
ARTICLE VIII
DISTRIBUTIONS
SECTION 8.1 Distributions to Shareholders. The board of directors may
authorize, and the corporation may make, distributions to its shareholders,
subject to any restriction in the articles of incorporation and subject also to
the limitations of subsection (b) of this Section.
(a) The record date for determining shareholders entitled to a
distribution is the date of the resolution of the board of directors
authorizing the distribution, if not otherwise determined under Section
7.25 of the Illinois Business Corporation Act of 1983, as amended.
(b) No distribution may be made if, after giving it effect:
(1) the corporation would be insolvent; or
(2) the net assets of the corporation would be less than zero or
less than the maximum amount payable at the time of distribution to
shareholders having preferential rights in liquidation if the
corporation were then to be liquidated.
(c) The board of directors may base a determination that a
distribution may be made under subsection (b) either on financial
statements prepared on the basis of accounting practices and principles
that are reasonable in the circumstances or on a fair valuation or other
method that is reasonable in the circumstances.
(d) The effect of a distribution under subsection (b) is measured as
of the earlier of:
(1) the date of its authorization if payment occurs within 120
days after the date of authorization or the date of payment if payment
occurs more than 120 days after the date of authorization; or
(2) in the case of distribution by purchase, redemption, or other
acquisition of the corporation's shares, the earlier of (i) the date
money or other property is transferred or debt incurred by the
corporation or (ii) the date shareholders cease to be shareholders.
ARTICLE IX
WAIVER OF NOTICE
SECTION 9.1 Waiver in Lieu of Notice. Whenever any notice is required to be
given under the provisions of these by-laws or under the provisions of the
articles of incorporation or under the provisions of The Business Corporation
Act of the State of Illinois, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Attendance at
any meeting shall constitute waiver of notice thereof unless the person at the
meeting objects to the holding of the meeting because notice was not given.
ARTICLE X
AMENDMENTS
SECTION 10.1 Determined by Directors. The by-laws of the corporation may be
made, altered, amended or repealed by the shareholders or the board of
directors, but no by-law adopted by the shareholders may be altered, amended or
repealed by the board of directors. The by-laws may contain any provisions for
the regulation and management of the affairs of the corporation not inconsistent
with law or the articles of incorporation.
ARTICLE XI
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 11.1 Power to Hold Harmless. The corporation shall have power to
indemnify 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 or she is or was a
director, officer, employee or agent of the corporation, or who 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 such person acted in good faith and in a
manner he or she 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 or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment or 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 or she reasonably believed to be in or not opposed to the best
interest of the corporation, or with respect to any criminal action or
proceeding, that the person had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 11.2 Power to Indemnify Litigant. The corporation shall have power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation,
of 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) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to the best interests of the
corporation, provided that no indemnification shall be made in respect of any
claim, issue or matter as to which such persons shall have been adjudged to be
liable for negligence or misconduct in the performance of his or her duty to the
corporation, unless, and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper.
SECTION 11.3 Reimbursement Authorized. To the extent that a director,
officer, employee, or agent of a corporation has been successful, on the merits
or otherwise, in defense of any action, suit or proceeding referred to in
Sections 11.1 and 11.2 above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
SECTION 11.4 Determination if Reimbursement is Proper. Any indemnification
under Sections 11.1 and 11.2 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 or she has met the applicable standard of conduct
set forth in Sections 11.1 or 11.2 above. Such determination shall be made:
(a) 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
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or
(c) by the shareholders.
SECTION 11.5 Advance of Expenses. Expenses incurred 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 the director, officer, employee or agent to repay such amount, unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the corporation as authorized in this Article.
SECTION 11.6 Non-Exclusivity. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under any contract, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 11.7 Right to Acquire Insurance. The corporation shall have power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of his or her status as such, whether or
not the corporation would have the power to indemnify him or her against such
liability under the provisions of this Article.
SECTION 11.8 Notice to Shareholders. If a corporation has paid indemnity or
has advanced expenses to a director, officer, employee or agent, the corporation
shall report the indemnification or advance in writing to the shareholders with
or before the notice of the next shareholders meeting.
SECTION 11.9 "Corporation" Definition. For purposes of this Article,
references to the "corporation" shall include, in addition to the surviving
corporation, any merging corporation (including any corporation having merged
with a merging corporation) absorbed in a merger which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers, and employees or agents, so that any person who was a
director, officer, employee or agent of such merging corporation, or was serving
at the request of such merging corporation as a director, officer, employee or
agent of an other corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the surviving corporation as such person would have with
respect to such merging corporation if its separate existence had continued.