Exhibit 4.3
RESTATED BYLAWS
OF
THE LIMITED, INC.
Adopted April 2, 1984
and as Amended
September 17, 1987
and
February 23, 1990
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the stockholders of
this corporation, for the purpose of fixing or changing the number of
directors of the corporation, electing directors and transacting such other
business as may come before the meeting, shall be held on such date, at such
time and at such place as may be designated by the Board of Directors.
Section 1.02. Special Meetings. Special meetings of the stockholders may
be called at any time by the chairman of the board, the vice chairman of the
board, or in case of the death, absence or disability of the chairman of the
board and the vice chairman of the board, the president, or in case of the
president's death, absence, or disability, the vice president, if any,
authorized to exercise the authority of the president, or a majority of the
Board of Directors acting with or without a meeting; provided, that if and to
the extent that any special meeting of stockholders may be called by any other
person or persons specified in any provision of the certificate of
incorporation or any amendment thereto or any certificate filed under Section
151(g) of the Delaware General Corporation Law (or its successor statute as in
effect from time to time), then such special meeting may also be called by the
person or persons, in the manner, at the times and for the purposes so
specified.
Section 1.03. Place of Meetings. Meetings of stockholders shall be held
at the principal office of the corporation in the State of Ohio, unless the
Board of Directors decides that a meeting shall be held at some other place
and causes the notice thereof to so state.
Section 1.04. Notices of Meetings. Unless waived, a written, printed, or
typewritten notice of each annual or special meeting, stating the date, hour
and place and the purpose or purposes thereof shall be served upon or mailed
to each stockholder of record entitled to vote or entitled to notice, not more
than 60 days nor less than 10 days before any such meeting. If mailed, such
notice shall be directed to a stockholder at his or her address as the same
appears on the records of the corporation. If a meeting is adjourned to
another time or place and such adjournment is for 30 days or less and no new
record date is fixed for the adjourned meeting, no further notice as to such
adjourned meeting need be given if the time and place to which it is adjourned
are fixed and announced at such meeting. In the event of a transfer of shares
after notice has been given and prior to the holding of the meeting, it shall
not be necessary to serve notice on the transferee. Such notice shall specify
the place where the stockholders list will be open for examination prior to
the meeting if required by Section 1.08 hereof.
Section 1.05. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, or 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 other change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. If the Board
shall not fix such a record date, (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held, and (ii) in any case
involving the determination of stockholders for any purpose other than notice
of or voting at a meeting of stockholders, the record date for determining
stockholders for such purpose shall be the close of business on the day on
which the Board of Directors shall adopt the resolution relating thereto.
Determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 1.06. Organization. At each meeting of the stockholders, the
chairman of the board, or in his absence, the vice chairman of the board, or
in his absence, the president, or, in his absence, any vice-president, or, in
the absence of the chairman of the board, the vice chairman of the board, the
president and a vice-president, a chairman chosen by a majority in interest of
the stockholders present in person or by proxy and entitled to vote, shall act
as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and
the assistant secretary not be present, any person whom the chairman of the
meeting shall appoint, shall act as secretary of the meeting.
Section 1.07. Quorum. A stockholders' meeting duly called shall not be
organized for the transaction of business unless a quorum is present. Except
as otherwise expressly provided by law, the certificate of incorporation,
these bylaws, or any certificate filed under Section 151 (g) of the Delaware
General Corporation Law (or its successor statute as in effect from time to
time), (i) at any meeting called by the Board of Directors, the presence in
person or by proxy of holders of record entitling them to exercise at least
one-third of the voting power of the corporation shall constitute a quorum for
such meeting and (ii) at any meeting called other than by the Board of
Directors, the presence in person or by proxy of holders of record entitling
them to exercise at least a majority of the voting power of the corporation
shall constitute a quorum for such meeting. The stockholders present at a duly
organized meeting can continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. If meeting cannot be organized because a quorum has not attended, a
majority in voting interest of the stockholders present may adjourn, or, in
the absence of a decision by the majority, any officer entitled to preside at
such meeting may adjourn the meeting from time to time to such time (not more
than 30 days after the previously adjourned meeting) and place as they (or he)
may determine, without notice other than by announcement at the meeting of the
time and place of the adjourned meeting. At any such adjourned meeting at
which a quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
Section 1.08. List of Stockholders. The secretary of the corporation
shall prepare and make a complete list of the stockholders of record as of the
applicable record date entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least 10 days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
Section 1.09. Order of Business and Procedure. The order of business at
all meetings of the stockholders and all matters relating to the manner of
conducting the meeting shall be determined by the chairman of the meeting,
whose decisions may be overruled only by majority vote of the stockholders
present and entitled to vote at the meeting in person or by proxy. Meetings
shall be conducted in a manner designed to accomplish the business of the
meeting in a prompt and orderly fashion and to be fair and equitable to all
stockholders, but it shall not be necessary to follow any manual of
parliamentary procedure.
Section 1.10. Voting. (a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each share or
fractional share of the stock of the corporation having voting rights on the
matter in question and which shall have been held by him and registered in his
name on the books of the corporation on the date fixed pursuant to Section
1.05 of these bylaws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting.
(b) Shares of its own stock belonging to the corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized and
delivered to the secretary of the meeting in sufficient time to permit the
necessary examination and tabulation thereof before the vote is taken;
provided, however, that no proxy shall be valid after the expiration of three
years after the date of its execution, unless the stockholder executing it
shall have specified therein the length of time it is to continue in force. At
any meeting of the stockholders all matters, except as otherwise provided in
the certificate of incorporation, in these bylaws or by law, shall be decided
by the vote of a majority in voting interest of the stockholders present in
person or by proxy and voting thereon, a quorum being present. The vote at any
meeting of the stockholders on any question need not be by ballot, unless so
directed by the chairman of the meeting or required by the certificate of
incorporation. On a vote by ballot each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and it shall
state the number of shares voted.
Section 1.11. Inspectors. The Board of Directors, in advance of any
meeting of the stockholders, may appoint one or more inspectors to act at the
meeting. If inspectors are not so appointed, the person presiding at the
meeting may appoint one or more inspectors. If any person so appointed fails
to appear or act, the vacancy may be filled by appointment made by the Board
of Directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at the meeting with strict impartiality and according to the best of
his ability. The inspectors so appointed shall determine the number of shares
outstanding, the shares represented at the meeting, the existence of a quorum
and the authenticity, validity and effect of proxies and shall receive votes,
ballots, waivers, releases, or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots, waivers, releases, or consents, determine and announce the
results and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the
meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated and of the vote as certified by them.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers of Board. The powers of the corporation
shall be exercised, its business and affairs conducted, and its property
controlled by the Board of Directors, except as otherwise provided by the law
of Delaware or in the certificate of incorporation.
Section 2.02. Number of Directors. The number of directors of the
corporation (exclusive of directors to be elected by the holders of any one or
more series of Preferred Stock voting separately as a class or classes) shall
not be less than 9 nor more than 13, the exact number of directors to be such
number as may be set from time to time within the limits set forth above by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors. As used in these Bylaws, the term "whole Board" means the total
number of directors which the corporation would have if there were no
vacancies.
Section 2.03. Election of Directors. At each meeting of the stockholders
for the election of directors, the persons receiving the greatest number of
votes shall be the directors.
Section 2.04. Nominations.
2.04.1. Nominations for the election of directors may be made by
the Board of Directors or by any stockholder entitled to vote for the election
of directors.
2.04.2. Such nominations, if not made by the Board of Directors,
shall be made by notice in writing, delivered or mailed by first class United
States mail, postage prepaid, to the secretary of the corporation not less
than 14 days nor more than 50 days prior to any meeting of the stockholders
called for the election of directors; provided, however, that if less than 21
days' notice of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the secretary of the
corporation not later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Each such notice shall
set forth (i) the name, age, business address and, if known, residence address
of each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee, and (iii) the number of shares of stock of
the corporation which are beneficially owned by each such nominee.
2.04.3. Notice of nominations which are proposed by the Board of
Directors shall be given on behalf of the Board by the chairman of the meeting.
2.04.4. The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 2.05. Resignations. Any director of the corporation may resign
at any time by giving written notice to the chairman of the board or the
secretary of the corporation. Such resignation shall take effect at the time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 2.06. Vacancies. In the event that any vacancy shall occur in
the Board of Directors, whether because of death, resignation, removal, newly
created directorships resulting from any increase in the authorized number of
directors, the failure of the stockholders to elect the whole authorized
number of directors, or any other reason, such vacancy may be filled by the
vote of a majority of the directors then in office, although less than a
quorum. A director elected to fill a vacancy, other than a newly created
directorship, shall hold office for the unexpired term of his predecessor.
Section 2.07. Removal of Directors. Directors may be removed only as
provided in the certificate of incorporation.
Section 2.08. Place of Meeting, etc. The Board of Directors may hold any
of its meetings at the principal office of the corporation or at such other
place or places as the Board of Directors may from time to time designate.
Directors may participate in any regular or special meeting of the Board of
Directors by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting of the Board of
Directors can hear each other and such participation shall constitute presence
in person at such meeting.
Section 2.09. Annual Meeting. A regular annual meeting of the Board of
Directors shall be held each year at the same place as and immediately after
the annual meeting of stockholders, or at such other place and time as shall
theretofore have been determined by the Board of Directors and notice thereof
need not be given. At its regular annual meeting the Board of Directors shall
organize itself and elect the officers of the corporation for the ensuing
year, and may transact any other business.
Section 2.10. Regular Meetings. Regular meetings of the Board of
Directors may be held at such intervals and at such time as shall from time to
time be determined by the Board of Directors. After such determination and
notice thereof has been once given to each person then a member of the Board of
Directors, regular meetings may be held at such intervals and time and place
without further notice being given.
Section 2.11. Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Board of Directors or by the chief
executive officer or by a majority of directors then in office to be held on
such day and at such time as shall be specified by the person or persons
calling the meeting.
Section 2.12. Notice of Meetings. Notice of each special meeting or,
where required, each regular meeting, of the Board of Directors shall be given
to each director either by being mailed on at least the third day prior to the
date of the meeting or by being telegraphed or given personally or by
telephone on at least 24 hours notice prior to the date of meeting. Such
notice shall specify the place, date and hour of the meeting and, if it is for
a special meeting, the purpose or purposes for which the meeting is called. At
any meeting of the Board of Directors at which every director shall be
present, even though without such notice, any business may be transacted. Any
acts or proceedings taken at a meeting of the Board of Directors not validly
called or constituted may be made valid and fully effective by ratification
at a subsequent meeting which shall be legally and validly called or
constituted. Notice of any regular meeting of the Board of Directors need not
state the purpose of the meeting and, at any regular meeting duly held, any
business may be transacted. If the notice of a special meeting shall state as
a purpose of the meeting the transaction of any business that may come before
the meeting, then at the meeting any business may be transacted, whether or
not referred to in the notice thereof. A written waiver of notice of a special
or regular meeting, signed by the person or persons entitled to such notice,
whether before or after the time stated therein shall be deemed the equivalent
of such notice, and attendance of a director at a meeting shall constitute a
waiver of notice of such meeting except when the director attends the meeting
and prior to or at the commencement of such meeting protests the lack of
proper notice.
Section 2.13. Quorum and Voting. At all meetings of the Board of
Directors, the presence of a majority of the directors then in office shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the certificate of incorporation, or these bylaws, the vote
of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. At all meetings of the
Board of Directors, each director shall have one vote.
Section 2.14. Committees. The Board of Directors may appoint an
executive committee and any other committee of the Board of Directors, to
consist of one or more directors of the corporation, and may delegate to any
such committee any of the authority of the Board of Directors, however
conferred, other than the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation. No
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock unless the resolution creating such committee
expressly so provides. Each such committee shall serve at the pleasure of the
Board of Directors, shall act only in the intervals between meetings of the
Board of Directors and shall be subject to the control and direction of the
Board of Directors. Any such committee may act by a majority of its members at
a meeting or by a writing or writings signed by all of its members. Any such
committee shall keep written minutes of its meetings and report the same to
the Board of Directors at the next regular meeting of the Board of Directors.
Section 2.15. Compensation. The Board of Directors may, by resolution
passed by a majority of those in office, fix the compensation of directors for
service in any capacity and may fix fees for attendance at meetings and may
authorize the corporation to pay the traveling and other expenses of directors
incident to their attendance at meetings, or may delegate such authority to a
committee of the board.
Section 2.16. Action by Consent. Any action required or permitted to be
taken at any meeting of the board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the board or such committee.
ARTICLE III
OFFICERS
Section 3.01. General Provisions. The officers of the corporation shall
be the chairman of the board (who shall be a director), a vice chairman of the
board (who shall be a director), a president, such number of vice-presidents
as the board may from time to time determine, a secretary and a treasurer. Any
person may hold any two or more offices and perform the duties thereof, except
the offices of chairman of the board and vice chairman of the board, or the
offices of president and vice-president.
Section 3.02. Election, Terms of Office, and Qualification. The officers
of the corporation named in Section 3.01 of this Article III shall be elected
by the Board of Directors for an indeterminate term and shall hold office
during the pleasure of the Board of Directors.
Section 3.03. Additional Officers. Agents, etc. In addition to the
officers mentioned in Section 3.01 of this Article III, the corporation may
have such other officers or agents as the Board of Directors may deem
necessary and may appoint, each of whom or each member of which shall hold
office for such period, have such authority and perform such duties as may be
provided in these bylaws as the Board of Directors may from time to time
determine. The Board of Directors may delegate to any officer the power to
appoint any subordinate officers or agents. In the absence of any officer of
the corporation, or for any other reason the Board of Directors may deem
sufficient, the Board of Directors may delegate, for the time being, the
powers and duties, or any of them, of such officer to any other officer, or
to any director.
Section 3.04. Removal. Any officer of the corporation may be removed,
either with or without cause, at any time, by resolution adopted by the Board
of Directors at any meeting, the notice (or waivers of notice) of which shall
have specified that such removal action was to be considered. Any officer
appointed not by the Board of Directors but by an officer or committee to which
the Board of Directors shall have delegated the power of appointment may be
removed, with or without cause, by the committee or superior officer
(including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of
Directors.
Section 3.05. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors, or to the chairman of the board, the
vice chairman of the board, the president, or the secretary of the
corporation. Any such resignation shall take effect at the time specified
therein, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3.06. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or otherwise, shall be filled in the
manner prescribed in these bylaws for regular appointments or elections to
such office.
ARTICLE IV
DUTIES OF THE OFFICERS
Section 4.01. The Chairman of the Board. The chairman of the board shall
be chief executive officer of the corporation and shall have general
supervision over the property, business and affairs of the corporation and
over its several officers, subject, however, to the control of the Board of
Directors. He shall, if present, preside at all meetings of the stockholders
and of the Board of Directors. He may sign, with the secretary, treasurer or
any other proper officer of the corporation thereunto authorized by the Board
of Directors, certificates for shares in the corporation. He may sign, execute
and deliver in the name of the corporation all deeds, mortgages, bonds, leases,
contracts, or other instruments either when specially authorized by the Board
of Directors or when required or deemed necessary or advisable by him in the
ordinary conduct of the corporation's normal business, except in cases where
the signing and execution thereof shall be expressly delegated by these bylaws
to some other officer or agent of the corporation or shall be required by law
or otherwise to be signed or executed by some other officer or agent, and he
may cause the seal of the corporation, if any, to be affixed to any instrument
requiring the same.
Section 4.02. Vice Chairman of the Board. The vice chairman of the board
shall perform such duties as are conferred upon him by these bylaws or as may
from time to time be assigned to him by the chairman of the board or the Board
of Directors. The authority of the vice chairman of the board to sign in the
name of the corporation all certificates for shares and deeds, mortgages,
leases, bonds, contracts, notes and other instruments, shall be coordinate
with like authority of the chairman of the board. In the absence or disability
of the chairman of the board, the vice chairman of the board shall perform all
the duties of the chairman of the board, and when so acting, shall have all the
powers of the chairman of the board.
Section 4.03. The President. The president shall perform such duties as
are conferred upon him by these bylaws or as may from time to time be assigned
to him by the chairman of the board or the vice chairman of the board or the
Board of Directors.
Section 4.04. Vice-Presidents. 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 of Directors, the chairman of the board, the
vice chairman of the board or the president. At the request of the chairman of
the board, in the absence or disability of the president, the vice-president,
designated by the chairman of the board shall perform all the duties of the
president, and when so acting, shall have all of the powers of the president.
Section 4.05. The Treasurer. The treasurer shall be the custodian of all
funds and securities of the corporation. Whenever so directed by the Board of
Directors, he shall render a statement of the cash and other accounts of the
corporation, and he shall cause to be entered regularly in the books and
records of the corporation to be kept for such purpose full and accurate
accounts of the corporation's receipts and disbursements. He shall have such
other powers and shall perform such other duties as may from time to time be
assigned to him by the Board of Directors, the chairman of the board or the
vice chairman of the board.
Section 4.06. The Secretary. The secretary shall record and keep the
minutes of all meetings of the stockholders and the Board of Directors in a
book to be kept for that purpose. He shall be the custodian of, and shall make
or cause to be made the proper entries in, the minute book of the corporation
and such other books and records as the Board of Directors may direct. He
shall be the custodian of the seal of the corporation, if any, and shall affix
such seal to such contracts, instruments and other documents as the Board of
Directors or any committee thereof may direct. He shall have such other powers
and shall perform such other duties as may from time to time be assigned to
him by the Board of Directors, the chairman of the board or the vice chairman
of the board.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 5.01. Indemnification. The corporation shall 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, by reason of the fact that he, his
testator, or intestate is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust
or other enterprise, or as a member of any committee or similar body against
all expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding (including appeals) or the
defense or settlement thereof or any claim, issue, or matter therein, to the
fullest extent permitted by the laws of Delaware as they may exist from time
to time.
Section 5.02. Insurance. The proper officers of the corporation, without
further authorization by the Board of Directors, may in their discretion
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
for another corporation, partnership, joint venture, trust or other
enterprise, against any liability.
Section 5.03. ERISA. To assure indemnification under this Article of all
such persons who are or were "fiduciaries" of an employee benefit plan
governed by the Act of Congress entitled "Employee Retirement Income Security
Act of 1974", as amended from time to time, the provisions of this Article V
shall, for the purposes hereof, be interpreted as follows: an "other
enterprise" shall be deemed to include an employee benefit plan; the
corporation shall be deemed to have requested a person to serve as an employee
of an employee benefit plan where the performance by such person of his duties
to the corporation also imposes duties on, or otherwise involves services by,
such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on a person with respect to an employee benefit plan pursuant
to said Act of Congress shall be deemed "fines"; and action taken or omitted
by a person with respect to an employee benefit plan in the performance of
such person's duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan shall be deemed
to be for a purpose which is not opposed to the best interests of the
corporation.
Section 5.04. Contractual Nature. The foregoing provisions of this
Article V shall be deemed to be a contract between the corporation and each
director and officer who serves in such capacity at any time while this
Section is in effect, and any repeal or modification thereof shall not affect
any rights or obligations then existing with respect to any state of facts then
or theretofore existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such state of facts.
Section 5.05. Construction. For the purposes of this Article V,
references to "the corporation" include in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was
a director or officer of such constituent corporation or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise or as a member of any committee or similar body shall stand in the
same position under the provisions of this Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
Section 5.06. Non-Exclusive. The corporation may indemnify, or agree to
indemnify, any person against any liabilities and expenses and pay any
expenses, including attorneys' fees, in advance of final disposition of any
action, suit or proceeding, under any circumstances, if such indemnification
and/or payment is approved by the vote of the stockholders or of the
disinterested directors, or is, in the opinion of independent legal counsel
selected by the Board of Directors, to be made on behalf of an indemnitee who
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation.
ARTICLE VI
DEPOSITORIES, CONTRACTS AND OTHER INSTRUMENTS
Section 6.01 Depositories. The chairman of the board, the vice chairman
of the board, the president, the treasurer, and any vice-president of the
corporation whom the Board of Directors authorizes to designate depositories
for the funds of the corporation are each authorized to designate depositories
for the funds of the corporation deposited in its name and the signatories and
conditions with respect thereto in each case, and from time to time, to change
such depositories, signatories and conditions, with the same force and effect
as if each such depository, the signatories and conditions with respect thereto
and changes therein had been specifically designated or authorized by the
Board of Directors; and each depository designated by the Board of Directors
or by the chairman of the board, the vice chairman of the board, the
president, the treasurer, or any such vice-president of the corporation, shall
be entitled to rely upon the certificate of the secretary or any assistant
secretary of the corporation setting forth the fact of such designation and of
the appointment of the officers of the corporation or of both or of other
persons who are to be signatories with respect to the withdrawal of funds
deposited with such depository, or from time to time the fact of any change
in any depository or in the signatories with respect thereto.
Section 6.02. Execution of Instruments Generally. In addition to the
powers conferred upon the chairman of the board in Section 4.01 and the vice
chairman of the board in Section 4.02 and except as otherwise provided in
Section 6.01 of this Article VI, all contracts and other instruments entered
into in the ordinary course of business requiring execution by the corporation
may be executed and delivered by the president, the treasurer, or any vice
president and authority to sign any such contracts or instruments, which may
be general or confined to specific instances, may be conferred by the Board of
Directors upon any other person or persons. Any person having authority to
sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or
persons if authorized so to do by the Board of Directors.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 7.01. Certificate for Shares. Every owner of one or more shares
in the corporation shall be entitled to a certificate, which shall be in such
form as the Board of Directors shall prescribe, certifying the number and
class of shares in the corporation owned by him. When such certificate is
counter-signed by an incorporated transfer agent or registrar, the signature
of any of said officers may be facsimile, engraved, stamped or printed. The
certificates for the respective classes of such shares shall be numbered in
the order in which they shall be issued and shall be signed in the name of the
corporation by the chairman of the board or the vice chairman of the board, or
the president or a vice president, and by the secretary or an assistant
secretary or the treasurer or an assistant treasurer. A record shall be kept
of the name of the person, firm, or corporation owning the shares represented
by each such certificate and the number of shares represented thereby, the
date thereof, and in case of cancellation, the date of cancellation. Every
certificate surrendered to the corporation for exchange or transfer shall be
canceled and no new certificate or certificates shall be issued in exchange
for any existing certificates until such existing certificates shall have been
so cancelled.
Section 7.02. Lost Destroyed and Mutilated Certificates. If any
certificates for shares in this corporation become worn, defaced, or mutilated
but are still substantially intact and recognizable, the directors, upon
production and surrender thereof, shall order the same cancelled and shall
issue a new certificate in lieu of same. The holder of any shares in the
corporation shall immediately notify the corporation if a certificate therefor
shall be lost, destroyed, or mutilated beyond recognition, and the corporation
may issue a new certificate in the place of any certificate theretofore issued
by it which is alleged to have been lost or destroyed or mutilated beyond
recognition, and the Board of Directors may, in its discretion, require the
owner of the certificate which has been lost, destroyed, or mutilated beyond
recognition, or his legal representative, to give the corporation a bond in
such sum and with such surety or sureties as it may direct, not exceeding
double the value of the stock, to indemnify the corporation against any claim
that may be made against it on account of the alleged loss, destruction, or
mutilation of any such certificate. The Board of Directors may, however, in
its discretion, refuse to issue any such new certificate except pursuant to
legal proceedings, under the laws of the State of Delaware in such case made
and provided.
Section 7.03. Transfers of Shares. Transfers of shares in the
corporation shall be made only on the books of the corporation by the
registered holder thereof, his legal guardian, executor, or administrator, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the secretary of the corporation or with a transfer agent appointed
by the Board of Directors, and on surrender of the certificate or certificates
for such shares properly endorsed or accompanied by properly executed stock
powers and evidence of the payment of all taxes imposed upon such transfer.
The person in whose name shares stand on the books of the corporation shall,
to the full extent permitted by law, be deemed the owner thereof for all
purposes as regards the corporation.
Section 7.04. Regulations. The Board of Directors may make such rules
and regulations as it may deem expedient, not inconsistent with these bylaws
concerning the issue, transfer, and registration of certificates for shares in
the corporation. It may appoint one or more transfer agents or one or more
registrars, or both, and may require all certificates for shares to bear the
signature of either or both.
ARTICLE VIII
SEAL
The Board of Directors may provide a corporate seal, which shall be
circular and contain the name of the corporation engraved around the margin
and the words "corporate seal", the year of its organization, and the word
"Delaware".
6029G
02/12/88