Exhibit 3.2
BY-LAWS
OF
EQUIVEST REINCORPORATION, INC.
(A Delaware Corporation)
EQUIVEST REINCORPORATION, INC.
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be at such place within
the State of Delaware as the board of directors may, from time to time,
determine.
Section 2. The corporation may also have offices, including
its principal executive offices, at such other places both within and without
the State of Delaware as the board of directors may from time to time determine
or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election
of directors shall be held in the State of Delaware, at such place as may be
fixed, from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on
the fifteenth day of the fifth month following the end of each fiscal year or as
soon thereafter as practicable, but in no case more than 13 months since the
last meeting, as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating place,
date and hour of the meeting shall be given to each stockholder of record
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting, either personally or by first class mail, by or
at the direction of the president, the secretary, or the officer or persons
calling the meeting. If the notice is mailed at least thirty days before the
date of the meeting, it may be done by a class of the United States mail other
than first class. If mailed such notice shall be deemed
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to be delivered when deposited in the United States mail addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation with postage thereon prepaid.
Section 4. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting or an adjournment thereof, arranged in alphabetical order and showing
the address of each stockholder and the number of, class and series of shares
registered in the name of each voting stockholder entitled to vote. Such list
shall be open to the examination of any stockholder, for any purpose (germane to
the meeting), during ordinary business hours, for a period of at least ten days
prior to the meeting, either at the registered office of the corporation, at the
principal place of business of the corporation, or at the office of the transfer
agent or registrar of the corporation. 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 5. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chairman of the board of
directors or the president or the board of directors, holders of not less than
one-tenth of all shares entitled to vote at the meeting, or such other persons
or group as may be authorized by the certificate of incorporation or these
by-laws. Such request shall state the purpose or purposes of the proposed
meeting.
Section 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the date of the meeting, to each stockholder entitled to vote at such
meeting, either personally or by first class mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting. If the
notice is mailed at least thirty days before the date of the meeting, it may be
done by a class of the United States mail other than first class. If mailed such
notice shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the corporation with postage thereon prepaid.
Section 7. Business transaction at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation, but in no event shall a quorum consist of less
than one-third of the shares entitled to vote at the meeting. When a specified
item of business is required to be voted on by a class or series of stock, a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series. If, however, such
quorum shall not be present or represented at any meeting of the
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stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more
than thirty 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 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting
and shall be the act of the stockholders, unless the question is one upon which
by express provision of the statutes, of the certificate of incorporation or
other provisions of the by-laws, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy executed in writing for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after 11 months from its date, unless the proxy provides for a
longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
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.
Section 12. At each meeting of the stockholders, the chairman
of the board, or in his absence or inability to act, any person chosen by the
majority of those stockholders present in person or represented by proxy shall
act as chairman of the meeting. The secretary or, in his absence or inability to
act, any person appointed by the chairman of the meeting shall act as secretary
of the meeting and keep the minutes thereof.
Section 13. The board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting shall appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of
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shares outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board shall be not less than one nor more than nine. The number of
directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting of the stockholders, except as provided in
Section 2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute.
Section 3. The business of the corporation shall be managed by
its board of directors which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by statute or by the certificate
of incorporation or by these by-laws directed or required to be exercised or
done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held immediately following the annual meeting of stockholders
at the place of such annual meeting of stockholders and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held immediately following the annual meeting of stockholders at
the place of
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such annual meeting of stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors (one
director in the event that there be a single director in office).
Section 8. At all meetings of the board a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
Section 11. No contract or other transaction between this
corporation and any other corporation shall be void or voidable nor shall any
director be liable in any way by reason of the fact that any one or more of the
directors of this corporation is or are interested in, or is a director or
officer, or are directors of such other corporation, provided that such facts
are disclosed or made known to the board of directors or the contract is fair
and reasonable as to the corporation at the time it is authorized by its board,
a committee or the stockholders.
Any director, personally and individually, may be a party to
or may be interested in any contract or transaction of this corporation, and no
director shall be liable in any way by reason of such interest, provided that
the fact of such interest be disclosed or made known to the
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board of directors, and provided that the board of directors shall authorize,
approve or ratify such contract or transaction by the vote (not counting the
vote of any such director) of a majority of a quorum, notwithstanding the
presence of any such director at the meeting at which such action is taken. Such
director or directors may be counted in determining the presence of a quorum at
such meeting. This Section shall not be construed to impair or invalidate or in
any way affect any contract or other transaction which would otherwise be valid
under the law (common, statutory or otherwise) applicable thereto.
COMMITTEES OF DIRECTORS
Section 12. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board 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 a meeting in the 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
the power or authority in reference to approve or recommend to shareholders
actions or proposals required by this chapter to be approved by shareholders;
designate candidates for the office of director for purposes of proxy
solicitation or otherwise; fill vacancies on the board of directors or any
committee thereof; amend the by-laws; authorize or approve the requisition of
shares unless pursuant to a general formula or method specified by the board of
directors; authorize or approve the issuance or sale of or any contract to issue
or sell shares or designate the terms of a series of a class of shares except
that the board of directors having acted regarding general authorization for the
issuance or sale of shares or any contract therefor and in the case of a series
of designation thereof may, pursuant to a general formula or method specified by
the board by resolution or by adoption of a stock option or other plan,
authorizing the committee to fix the terms of any contract for the sale of the
shares and to fix the terms upon which such shares may be issued or sold,
including, without limitation, the price, the rate or manner of payment of
dividends, provisions for redemption, sinking fund, conversion and voting or
preferential rights, and provisions for other features of a class of shares, or
a series of a class of shares with full power and such committee to adopt any
final resolution setting forth all the terms thereof an to authorize the
statement of the terms of a series for filing with the Department of State under
the Delaware General Corporation Law. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the board of directors. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
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COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by-laws, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram. If the notice is mailed at
least thirty days before the date of a meeting, it may be done by a class of the
United States Mail other than first class.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by
the board of directors and shall be a president, a vice-president, a secretary
and a treasurer. The board of directors may also choose a chairman,
vice-chairman, additional vice-presidents, and one or more
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assistant secretaries and assistant treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 2. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE CHAIRMAN OF THE BOARD AND THE PRESIDENT
Section 6. The chairman of the board, if any, shall be the
chief executive officer of the corporation and shall have general and active
management of the business of the corporation and general and active supervision
and direction over the other offices, agents and employees and shall see that
their duties are properly performed. He shall, if present, preside at each
meeting of the stockholders and of the board and shall be an ex officio member
of all committees of the board. He shall perform all duties incident to the
office of chairman of the board and chief executive officer and such other
duties as may from time to time be assigned to him by the board.
The president shall be the chief operating officer (and if
there is no chairman of the board, then also the chief executive officer) of the
corporation and shall have general and active supervision and direction over the
business operations and affairs of the corporation and over its several
officers, agents and employees, subject, however, to the direction of the
chairman of the board and the control of the board of directors. At the request
of chairman of the board, or in the case of his absence or inability to act, the
president shall perform the duties of the chairman of the board and when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the chairman of the board. In general, the president shall have such other
powers and shall perform such other duties as usually pertaining to office of
president or as from time to time may be assigned to him by the board, the
chairman of the board or these by-laws.
Section 7. The chairman or president shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof
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shall be expressly delegated by the board of directors to some other officer or
agent of the corporation.
THE VICE PRESIDENTS
Section 8. 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
directors, or in the absence of any designation, then in the order of their
election) 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. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant,
secretary, shall have the authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
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Section 12. He shall disburse the funds of the corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all its transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall
give the corporation a bond (which shall be renewed every six years) in such sum
and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 14. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the president or a vice-president and the secretary or an assistant secretary of
the corporation, and may be sealed with the seal of the corporation or facsimile
thereof, certifying the number of shares owned by him in the corporation.
If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided by statute, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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Section 2. Any of or all the signatures on the certificate may
be 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 3. Each certificate representing shares shall state
upon the face thereof the name of the corporation, that the corporation is
organized under the laws of the State of Delaware, the name of the person or
persons to whom issued, the number and class of shares and the designation of
the series, if any, which said certificate represents, the par value of each
share represented by such certificate or statement that shares are without par
value.
LOST CERTIFICATES
Section 4. The board of directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
sole discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or give, the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 5. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
FIXING RECORD DATE
Section 6. 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 sixty or less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a
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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.
REGISTERED STOCKHOLDERS
Section 7. The original stock transfer book shall be prime
facie evidence as to who are the shareholders entitled to examine lists of
stockholders or to vote at any meetings of the shareholders.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any time, pursuant to law
except when the corporation is insolvent, when the payment thereof would render
the corporation insolvent, or when the declaration or payment thereof would be
contrary to any restrictions contained in the certificate of incorporation.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation, only out of the
unreserved and unrestricted earned surplus of the corporation or out of capital
surplus, however rising, when each dividend paid out of capital surplus shall be
identified as a distribution of capital surplus, and the amount per share paid
from such surplus shall be disclosed to the shareholders receiving the same
concurrently with the distribution.
Section 2. Dividends may be declared and paid in its own
treasury shares or in its own authorized but unissued shares out of any
unreserved and unrestricted surplus of the corporation if a dividend is payable
and its own shares having par value, such shares shall be issued at not less
than par value thereof and shall be transferred to stated capital at the time
such dividend is paid in an amount of surplus equal to the aggregate par value
of the share certificate issued as a dividend or, if a dividend is payable in
its own shares without par value, such shares shall be issued at such stated
value as shall be fixed by the board of directors by resolution adopted at the
time such dividend is declared, and it shall be transferred to stated capital at
the time such dividend is paid an amount of surplus equal to the aggregate
stated value so fixed in respect of such shares, and the amount per share so
transferred to stated capital shall be disclosed to shareholders receiving such
dividend concurrently with the payment thereof.
Section 3. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for
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such other purposes as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 4. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 5. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 6. The fiscal year of the corporation shall end on
December 31 of each year.
SEAL
Section 7. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed
or new by-laws may be adopted by the board of directors unless reserved to the
shareholders by the certificate of incorporation, at any meeting of the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting. The by-laws may also be amended by the stockholders pursuant to
Section 11 of Article II without prior notice of alteration, amendment, repeal
or adoption of new by-laws. The power to adopt, amend or repeal by-laws by the
board of directors shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
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ARTICLE IX
CORPORATE INDEMNIFICATION PLAN
The corporation shall indemnify any person:
(1) 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 such costs and expenses, and to the extent and in the manner
provided in Section 145 of the Delaware General Corporation Law;
(2) 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 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 the
corporation or is or was serving at the request of the corporation as 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 such costs and expenses, and to the
extent and in the manner provided in Section 145 of the Delaware
General Corporation Law.
The extent, amount, and eligibility for the indemnification
provided herein will be made by the board of directors. Said determinations will
be made by a majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding or by the shareholders by a majority
vote of a quorum consisting of shareholders who were not parties to such action,
suit, or proceeding.
The corporation will have the power to make further
indemnification as provided in Section 145 of the Delaware General Corporation
Law; however, the indemnification or advancement of expenses shall not be made
to or on behalf of any director, officer, employee or agent if a judgment or
other final adjudication establishes that his actions or omissions to act, were
material to the cause of action so adjudicated and constitute a violation of the
criminal law unless the director, officer, employee or agent has reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; a transaction which the director, officer, employee or
agent derived an improper personal benefit; in the case of a director, a
circumstance under which the liability provisions of Section 145 of the Delaware
General Corporation Law are applicable or wilful misconduct or conscious
disregard for the best
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interests of the corporation in proceeding by or in the right of the corporation
to procure a judgment in its favor or in a proceeding by or in the right of the
shareholder.
The corporation is further authorized to purchase and maintain
insurance for indemnification of any person as provided herein and to the extent
provided in Section 145 of the Delaware General Corporation Law.
ARTICLE X
MEDICAL EXPENSE PLAN
Section 1. Benefits. The corporation may reimburse all
employees for expenses incurred by themselves and their dependants, as defined
in IRC S152, as amended, for medical care, as defined in IRC S213(e), as
amended, subject to the conditions and limitations as hereinafter set forth.
It is the intention of the corporation that the benefits
payable to employees hereunder will be excluded from their gross income pursuant
to IRC S105, as amended.
Section 2. Employees Defined. The term "employees" as used in
this medical expense plan is hereby defined to include all individuals employed
by the corporation except the following:
(a) Employees who have not completed 36 months of service as
is provided in Section 105(h)(3)(B)(i) of the Internal Revenue Code;
(b) Employees who have not attained the age of twenty-five
(25) years;
(c) Employees who are part-time or seasonal as is defined in
section 105(h)(3)(B)(iii) of the Internal Revenue Code;
(d) Employees who are included in a unit of employees covered
by an agreement between employee representatives and one or more
employers found to be a collective bargaining agreement, where accident
and health benefits were the subject of good faith bargaining between
such employee representatives and such employer(s) as is defined in
Section 105(h)(3)(B)(iv) of the Internal Revenue Code;
(e) Employees who are nonresident aliens and who receive no
earned income from the employer which constitutes income from sources
within the United States as is further defined in Section
105(h)(5)(B)(v).
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Section 3. Limitations. The corporation will reimburse any
employee no more than $500.00 in any fiscal year for medical care expenses.
Reimbursement or payment provided under this plan will be made
by the corporation only in the event and to the extent that such reimbursement
or payment is not provided under any insurance policy(ies), whether owned by the
corporation or the employee, or under any other health and accident or wage
continuation plan.
In the event that there is such an insurance policy or plan in
effect providing for reimbursement in whole or in part, then to the extent of
the coverage under such policy or plan, the corporation will be relieved of any
and all liability hereunder.
Section 4. Submission of Proof. Any employee applying for
reimbursement under this plan will submit to the corporation, at least
quarterly, all bills for medical care, including premium-notices for accident or
health insurance, for verification by the corporation prior to payment. Failure
to comply herewith, may at the discretion of the corporation, terminate such
employee's right to said reimbursement.
Section 5. Discontinuation. This plan will be subject to
termination at any time by vote of the board of directors of the corporation;
provided, however, that medical care expenses incurred prior to such termination
will be reimbursed or paid in accordance with the terms of this plan.
Section 6. Determination. The president will determine all
questions arising from the administration and interpretation of the Plan except
where reimbursement is claimed by the President. In such case determination will
be made by the board of directors.
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