Exhibit 3.96
TOLL PA GP CORP.
formerly
TOLL LAND CORP. NO. 35
BY-LAWS
ARTICLE I. Offices.
1.1 Principal Office. The principal office of the Corporation shall be
located at 3103 Philmont Avenue, Huntingdon Valley, PA 19006. The Corporation
may also have offices at such other places as the Board of Directors may from
time to time appoint or as the business of the corporation may require.
1.2 Registered Office. The registered office of the Corporation
Registered the Commonwealth of Pennsylvania need not be identical with the said
principal office, but may be changed from time to time as the Board of Directors
may determine.
ARTICLE II. Shareholders.
2.1 Annual Meeting. The annual meeting of the shareholders shall be
held in each year commencing in 1993, at 10 o'clock a.m. local time on such date
and at such time as the Board of Directors may adopt by a two-thirds vote
thereof. The adoption of such other date or time shall be promptly recorded with
the Secretary of the Corporation. If the day fixed for the annual meeting shall
be a legal holiday in the Commonwealth of Pennsylvania, such meeting shall be
held on the next succeeding business day. If the annual meeting has not been
held during a calendar year, any shareholder may call such meeting by following
the procedure set forth in Section 2.2 hereof.
At the annual meeting, the shareholders shall elect Directors for the
ensuing year and may transact such other business as may properly come before
the meeting.
2.2 Special Meetings. Special meetings of the shareholders may be
called at any time by the President, or by the Board of Directors, or by the
shareholders entitled to cast at least one-fifth (1/5) of the votes which all
shareholders are entitled to cast at the particular meeting. Upon written
request of any person or persons who have duly called a special meeting, the
Secretary shall fix the date of the meeting to be held not more than sixty (60)
days after receipt of the request and give due notice thereof to the
shareholders entitled to vote thereat. If the Secretary shall neglect or refuse
to fix such date or give such notice, the person or persons calling the meeting
may do so.
2.3 Place of Meeting. The Board of Directors may designate any place,
either within, or without the Commonwealth of Pennsylvania (if a majority of the
directors or shareholders thereof are citizens of another state), as the place
of meeting for such directors or shareholders, except that the annual meeting
for the election of officers of the Corporation must be held in the Commonwealth
of Pennsylvania. If no designation is made by the Board of Directors, the place
of meeting shall be at the principal office of the Corporation in the
Commonwealth of Pennsylvania.
2.4 Notice of Meeting. Written notice shall, unless otherwise provided
by statute, be given by, or at the direction of, the person authorized to call
the meeting, to shareholders entitled to vote at the meeting who are
shareholders as of the record date as provided in Section 2.6 hereof, not less
than ten (10) nor more than fifty (50) days before the date of the meeting,
either personally or by sending a copy thereof through the mail, or by telegram,
charges prepaid, to the address of the shareholder appearing on the books of the
Corporation, or supplied by the shareholder to the Corporation for the purpose
of notice. Such notice shall state the place, date and hour of the meeting. When
required by these By-Laws or by statute, such notice shall also state the
general nature of the business to be transacted.
2.5 Sufficiency of Notice. Any notice required hereunder shall be
deemed to have been given to the person entitled thereto (a) if sent by mail,
when deposited in the United States mail, postage prepaid, or (b) when lodged
with a telegraph office for transmission with charges prepaid, or (c) when
delivered personally.
Whenever notice is required to be given, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether signed before
or after the time stated, shall be deemed equivalent to the giving of such
notice. Attendance of a person at any meeting, either in person or by proxy,
shall constitute a waiver of notice of such meeting, except where a person
attends a meeting for the express and stated purpose of objecting to the
transaction of any business because the meeting was not lawfully called or
convened.
2.6 Record Date. The Board of Directors may fix in advance a date as
the record date for the determination of shareholders entitled to notice of, or
to vote at, any meeting of shareholders, or shareholders entitled to receive
payment of any dividend or distribution, or in order to make a determination of
shareholders for any other proper purpose, such date in any case to be not more
than sixty (60) days and, in case of a meeting of shareholders, not less than
ten (10) days, prior to the date for which such determination of shareholders is
necessary or proper. If no record date is fixed for the determination of
shareholders entitled to receive notice of, or to vote at, a meeting of
shareholders, or shareholders entitled to receive payment of a dividend or such
other entitlement, the date on which notice of the meeting is mailed, or the
date on which the resolution of the Board of Directors declaring such dividend
or other entitlement is adopted, as the case may be, shall be the record date
for such determination of shareholders.
2.7 Voting List. The officer or agent having charge of the transfer
book for shares of the Corporation shall make, at least ten (10) days before
each meeting of shareholders, a complete list of the shareholders entitled to
vote at the meeting, arranged in alphabetical order, with the address and the
number of shares held by each. The list shall be kept on file at the principal
office of the Corporation and shall be subject to inspection by any shareholder
at any time during usual business hours, and shall also be produced and kept
open at the time and place of the meeting, and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The stock
ledger shall be used to determine who are the shareholders entitled to examine
such list or stock ledger or to vote, in person, or by proxy, at any meeting of
the shareholders.
2.8 Quorum. Except as otherwise required by law, the presence of
shareholders, in person or by proxy, entitled to cast at least a majority of the
votes which all Common Shareholders (plus such other shareholders who may from
time to time be entitled to vote with the holders of Common Shares) are entitled
to cast shall constitute a quorum. With respect to the consideration of any
particular matter as to which the shareholders of any class or series shall be
entitled to cast a vote separate from the vote of the Common Shareholders, the
presence of shareholders, in person or by proxy, entitled to cast at least a
majority of the votes which all such class or series of shareholders are
entitled to cast on such particular matter shall constitute a quorum of such
class or series of shareholders for the purpose of considering such matters. The
shareholders present at a duly organized meeting can continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum.
If a meeting cannot be organized because a quorum has not attended,
those present may adjourn the meeting to such time and place as they may
determine. When a meeting called for the election of directors has been once
adjourned because a quorum had not attended, those shareholders entitled to vote
in the election of directors who attend the second of such adjourned meetings,
although less than a quorum as fixed in these By-Laws or in the Articles of
Incorporation or by statute, shall nevertheless constitute a quorum for the
purpose of electing directors.
2.9 Acts of Shareholders. Unless a greater or different vote shall be
required as to a particular matter by the Articles of Incorporation or by these
By-Laws or by applicable statute, an act authorized by the vote of the holders
of a majority of those Common Shares (plus holders of such other shares which
may from time to time be entitled to vote with the holders of Common Shares)
present in person or by proxy at a duly organized meeting shall be the act of
the shareholders.
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2.10 Adjournment. Adjournment or adjournments at any annual or special
meeting may be taken as may be directed by a majority of votes cast by the
shareholders present in person, or by proxy entitled to cast the votes which the
Common Shareholders (plus such other shareholders who shall at the time be
entitled to vote with the holders of Common Shares on the matters to be
considered at the meeting) may cast. When a meeting is adjourned, it shall not
be necessary to give any notice of the adjourned meeting other than by
announcement at the meeting at which such adjournment is taken. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the
meeting. Adjournment of any meeting at which directors are to be elected shall
be adjourned only from day to day, or for such longer periods, not to exceed
fifteen (15) days each, as directed by the shareholders present in person or by
proxy, provided that they constitute at least a majority of the votes entitled
to be cast at an election of directors.
2.11 Proxies. At all meetings of shareholders, a shareholder entitled
to vote on a particular matter may vote in person entitled to vote on a
particular matter may vote in person or may authorize another person or persons
to act for him by proxy. Every proxy shall be executed in writing by the
shareholder, or by his duly authorized attorney in fact. Such proxies shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. A proxy, unless coupled with an interest, shall be revocable at will,
notwithstanding any other agreement or any provision in the proxy to the
contrary, but the revocation of the proxy shall not be effective until notice
thereof has been given to the Secretary of the Corporation. The Secretary may
treat any proxy delivered to him as valid, unless before the vote is counted or
the authority is exercised, written notice of any invalidity, together with such
supporting information as shall enable a judgment to be rendered, is given to
the Secretary.
2.12 Voting Rights. Unless otherwise provided in the Articles of
Incorporation or in a duly filed statement establishing the rights of classes or
series, only the holders of Common Stock shall be entitled to vote at a meeting
of the shareholders.
2.13 Nomination of Directors. Nominations for election to the office of
director at an annual or special meeting of shareholders shall be made by the
Board of Directors, or by the Executive Committee, or by petition in writing
delivered to the Secretary of the Corporation not fewer than thirty-five (35)
days prior to such shareholders' meeting, signed by the holders of at least one
percent (1%) of the shareholders' shares entitled to be voted in the election of
directors. Unless nominations shall have been made as aforesaid, they shall not
be considered at such shareholders' meeting unless the number of persons
nominated as aforesaid shall be fewer than the number of persons to be elected
to the office of director at such meeting, in which events nominations may be
made at the shareholders' meeting by any person entitled to vote in the election
of directors.
2.14 Election by Ballot. The election of directors shall be by ballot
upon demand before the voting begins by a shareholder entitled to vote at such
election. Unless so demanded, voting need not be by ballot.
2.15 Inspectors of Election. In advance of any meeting of shareholders,
the Board of Directors may appoint Inspectors of Election, who need not be
shareholders, to act at such meeting or any adjournment thereof. The number of
Inspectors shall be one or three. The Inspectors of Election shall determine the
number of shares outstanding and the voting power of each; the shares
represented at the meeting; the existence of a quorum, the authenticity,
validity and effect of proxies; hear and determine all challenges and questions
arising in connection with the right to vote; receive, count and tabulate all
votes or ballots, and determine the result; and do such other acts as may be
necessary and proper to conduct the election or vote with fairness to all
shareholders. On request of the Chairman of the Meeting, or of any shareholder
or his proxy, the Inspectors shall make a report in writing of any challenge of
question or matter determined by them, and execute a certificate of any fact
found by them. If there be three Inspectors of Election, the decision, act or
certificate of a majority shall be effective in all respects as the decision
and/or certificate of all. Any report or certificate made by the Inspectors of
Election shall be prima facie evidence of the facts stated therein.
2.16 Consent of Shareholders in Lieu of Meeting. Any action which may
be taken at any annual or special meeting of the shareholders or of a class of
shareholders may be taken without a meeting, if a consent or consents in
writing, setting forth the action so taken, shall be signed by all of the
shareholders who would be entitled to vote at a meeting for such purpose and
shall be filed with the Secretary of the Corporation.
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Any action which may be taken at a meeting of the shareholders, or of a
class of shareholder, may be taken without a meeting, if a consent, or consents,
in writing to such action, setting forth the action so taken, shall be signed by
the shareholders entitled to cast the greater of two-thirds (2/3) of the votes
which all shareholders are entitled to cast at a meeting for such purpose or the
minimum percentage of the vote required by the Pennsylvania Business Corporation
Law (Act of May 5, 1933, P.L. 364, as amended) for the proposed action and shall
be filed with the Secretary of the Corporation. Such action shall not become
effective until after ten days' written notice of such consent in writing to
such action shall have been given to each shareholder of record entitled to vote
thereon.
ARTICLE III. Board of Directors.
3.1 Number. Tenure and Qualifications. The business and affairs of the
Corporation shall be managed by its Board of Directors, which shall be three (3)
in number. The directors shall be elected at the annual meeting of the
shareholders as provided in Section 2.1 of these By-Laws, and each director
elected shall hold office until his successor is elected and qualified.
Directors shall be natural persons of full age and need not be shareholders in
the Corporation.
3.2 Powers and Authorization. In addition to the powers and authority
by these By-Laws expressly conferred, the Board of Directors may exercise all
the powers of the Corporation and do all lawful acts not by statute or by the
Articles or by these By-Laws directed or required to be exercised or done only
by the shareholders. The Board shall have the power to elect the Chairman of the
Board by majority vote, to delegate any of the powers exercised or exercisable
by the Board to any standing or special committee, or to any officer or agent,
or to appoint any person to be the agent of the Corporation, with such powers,
including the power to subdelegate, and upon such terms as the Board shall deem
appropriate.
3.3 Meetings. Meetings of the Board of Directors shall be held at such
times and places, either within or without the Commonwealth of Pennsylvania, as
may be fixed by resolution of the Board, or by the President, or upon written
demand of a majority of the directors.
3.4 Notice. Notice of a meeting of directors or of any committee of the
Board of Directors shall be delivered at least one day prior to such meeting by
oral, telegraphic or written notice. If mailed, such notice shall be deemed to
be delivered on the second day following the day deposited in the United States
mail, addressed to the director at his business address, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
delivered on the day the telegram is delivered prepaid to the telegraph company,
addressed to the director at his business office. Notice of a meeting need only
state the place, day and hour of the said meeting.
A director may waive notice of any meeting in a writing signed either
before or after the time stated. The attendance of a director at a 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 was not lawfully called or convened.
3.5 Quorum. A majority of the directors then in office shall constitute
a quorum for the transaction of business at any meeting of the Board of
Directors, but if less than such quorum is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time without further
notice.
Directors shall be deemed present at a meeting of the Board of
Directors if by means of conference telephone or similar communications
equipment all persons participating in the meeting can hear each other.
The act of the majority of the directors voting at a meeting at which a
quorum is present shall be the act of the Board of Directors.
3.6 Unanimous Consent. Any action which may be taken at the meeting of
the directors, or by action of the members of the Executive Committee or by the
members of any other committee appointed by the Board, may be taken without a
meeting, if a consent or consents in writing setting forth the action so taken
shall be signed by all of the directors or the members of the committee, as the
case may be, and filed with the Secretary of the Corporation.
3.7 Compensation. Directors as such need not receive any compensation
for their services. By resolution of the Board, a stated salary may be fixed for
the directors, or a fixed sum for, and expenses of, attendance may be allowed
for attendance at each regular or special meeting of the Board. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation as a member of a committee or an officer or in any other capacity
and receiving compensation therefor.
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3.8 Committees of the Board. The Board may, by resolution adopted by a
majority of the whole Board, delegate two or more of its number to constitute an
Executive Committee, which, unless otherwise provided in such resolution, shall
have and exercise the authority of the Board of Directors in the management of
the business and affairs of the Corporation. The Board may by resolution adopted
by a majority of the whole Board delegate two or more of its members to act as a
committee to exercise all power and authority which the Board might exercise in
matters as to which the Committee is authorized to act.
The presence in person or as hereafter provided of one-half (1/2) of
the members of the Executive Committee or any other committee shall constitute a
quorum for the transaction of business at any meeting of such committee, and the
act of a majority of those members of such committee voting at a meeting at
which a quorum is present shall be the act of the committee. Members of the
Executive Committee or any other committee shall be deemed as being present at a
meeting of such committee if by means of conference telephone or similar
communications equipment all persons participating in the meeting can hear each
other. In the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent to disqualified member.
3.9 Removal of Directors. Any individual director may be removed from
office without assigning any cause by the vote of shareholders entitled to cast
at least a majority of the votes which all shareholders would be entitled to
cast at any annual election of directors, but such removal shall not occur if
the votes of a sufficient number of shares are cast against the resolution for
his removal which, if cumulatively voted at an annual meeting of shareholders,
would be sufficient to elect one or more directors.
The entire Board of Directors may be removed from office without
assigning any cause by the vote of shareholders entitled to cast at least a
majority of the votes shareholders would be entitled to cast at any annual
election of directors.
The Board of Directors may declare vacant the office of a director if
he be declared of unsound mind by an order of court, or convicted of a felony or
other crime, or for any other proper cause.
3.10 Vacancies. Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of directors, shall be filled
by a majority vote of the remaining members of the Board though less than a
quorum. A director elected to fill a vacancy shall be a director until a
successor is elected by the shareholders, who may make such election at the next
annual meeting of the shareholders or any special meeting duly called for that
purpose and held prior thereto.
ARTICLE IV. Officers.
4.1 Executive Officers. The executive officers of the Corporation shall
be chosen by the directors and shall be a Chief Executive Officer, a Chief
Operating Officer, a President, a Vice President, a Secretary, and a Treasurer.
The Board of Directors may also choose one or more Vice Presidents and one or
more Assistant Secretaries and such other officers and agents as it shall deem
necessary, who shall hold their offices for such terms and shall have such
authority and shall perform such duties as from time to time shall be prescribed
by the Board.
4.2 Qualifications. Any number of offices may be held by the same
person unless the Articles of Incorporation or these By-Laws otherwise provide.
4.3 Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
4.4 Term of Office; Removal. The officers of the Corporation shall hold
office for one year and until their successors are chosen and qualified. 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, without
assigning any cause therefor.
4.5 Duties of the Officers. Officers of the Corporation shall have such
duties and responsibilities as are established from time to time by the Board of
Directors of the Corporation.
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4.6 Vacancies. If the office of any officer or agent, one or more,
becomes vacant for any reason, the Board of Directors may choose a successor or
successors, who shall hold office at the pleasure of the Board.
ARTICLE V. Indemnifications of Directors and Officers.
5.1 Directors Officers and Agents - Official Capacity. The Corporation
shall indemnify and hold harmless to the fullest extent permitted under the
Pennsylvania Business Corporation Law, the Directors' Liability Act (the "DLA")
and other applicable law, as such laws existed on the date this Article V was
adopted by the Board of Directors or, except as provided in Article 5.6 hereof,
as such laws may thereafter be amended ("Pennsylvania Law"), any person who was
or is a party or was or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, an action by or
in the right of the Corporation (collectively, for purposes of this Article V,
"Proceeding"), by reason of the fact that he is or was or has agreed to become a
director or officer of the Corporation, or is or was serving or has agreed to
serve at the request of the corporation as a director or officer of another
corporation, or if a director or officer of the Corporation, is or was serving
or has agreed to serve at the request of the corporation as an employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in any such
capacity, and may indemnify and hold harmless to the fullest extent permitted
under Pennsylvania law any person who was or is a party or was or is threatened
to be made a party to such a Proceeding by reason of the fact that he is or was
or has agreed to become an employee or agent of the Corporation, or, if an
employee or agent of the Corporation, is or was serving or has agreed to serve
at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, liability and loss (including, without limitation, attorneys' fees and
disbursements, punitive and other damages, judgments, fines, penalties, excise
taxes assessed with respect to an employee benefit plan, amounts paid or to be
paid in settlement and costs and expenses of any nature) incurred by him in
connection with such Proceeding and any appeal therefrom; provided, that such
indemnification shall not be made in any case where the act or failure to act
giving rise to the claim for indemnification shall not be made in any case where
the act or failure to act giving rise to the claim for indemnification is
determined by a court in a final, binding adjudication to have constituted
willful misconduct or recklessness.
5.2 Directors Officers and Agents - Non-Official Capacity. The
Corporation may indemnify and hold harmless to the fullest extent permitted
under Pennsylvania law any person who was or is a party or was or is threatened
to be made a party to any Proceeding, by reason of any of his actions in a
non-official capacity while serving as a director, officer, employee or agent of
the Corporation, against expenses, liability and loss (including, without
limitation, attorneys' fees and disbursements, punitive and other damages,
judgments, fines, penalties, excise taxes assessed with respect to an employee
benefit plan, amounts paid or to be paid in settlement and costs and expenses of
any nature) incurred by him in connection with such Proceeding and any appeal
therefrom; provided, that such indemnification shall not be made in any case
where the act or failure to act giving rise to the claim for indemnification is
determined by a court in a final, binding adjudication to have constituted
willful misconduct or recklessness.
5.3 Termination of Proceeding. The termination of any Proceeding by
judgment, order, settlement, conviction, or upon a plea of guilty or nolo
contendere, or its equivalent, shall not, of itself, create a presumption that
the person's conduct constituted willful misconduct or recklessness.
5.4 Expenses. Expenses incurred by a director or officer in defending a
Proceeding shall be paid by the Corporation in advance of the final disposition
of the Proceeding, provided that, if Pennsylvania law requires, the payment of
such expenses shall be made only upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
mandated in this Article V or otherwise. Expenses incurred by other employees
and agents may be so paid to the extent provided by the Board of Directors, upon
receipt of the foregoing undertaking by or on behalf of the employee or agent.
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5.5 Non-Exclusivity. The indemnification provided by this Article V
shall be in addition to and not exclusive of any other rights to which those
seeking indemnification may be entitled under Pennsylvania law, or under any
by-law, agreement executed by the Corporation, insurance policy, fund of any
nature established by the Corporation, vote of shareholders or disinterested
directors or otherwise. The indemnification so provided by this Article V or
otherwise, may be granted whether or not the Corporation would have the power to
indemnify such person under any provision of Pennsylvania law other than the
DLA.
5.6 Contract. The indemnification provisions of this Article V shall
constitute a contract between the Corporation and each of its directors,
officers, employees and agents who is or may be entitled to indemnification
hereunder and who serves in any such capacity at any time while such provisions
are in effect. Any repeal or modification of the indemnification provisions of
this Article V shall not limit any such person's rights to indemnification
(including the advancement of expenses) then existing or arising out of events,
acts or omissions occurring prior to such repeal or modification, including,
without limitation, the right to indemnification with respect to proceedings
commenced after such repeal or modification based in whole or in part upon any
such event, act or omission.
5.7 Funding of Indemnification.
(a) The Corporation may create a fund of any nature, which
may, but need not be, under the control of a trustee, or otherwise may secure or
insure in any manner its indemnification obligations, whether arising under or
pursuant to this Article V or otherwise.
(b) The Corporation may purchase and maintain insurance to
insure its indemnification obligations on behalf of any person who is or was or
has agreed to become 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 expense, liability or loss asserted against him
and incurred by him or on his behalf in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article V or under any
provision of Pennsylvania Law other than the DLA.
5.8 Duration. The indemnification provided by this Article V 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.
5.9 Conditions. The Corporation may impose reasonable restrictions upon
any persons seeking indemnification (including advanced expenses) under this
Article including, but not limited to, a condition to the effect that, except to
the extent differing interests compel another result, persons to be indemnified
under this paragraph may be required to share the same counsel and other
services.
5.10 Limitation on Director's Personal Liability.
(a) To the fullest extent permitted under the DLA, as it
existed on the date this Article V was adopted, or, except as provided in
subarticle (e), as such law may thereafter be amended, a director of this
Corporation shall not be personally liable for monetary damages as a result of
any action or failure to act unless both (1) the director has breached or failed
to perform the duties of his office under Section 8363 of the DLA, and (2) the
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness.
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(b) The provisions of this Article 5.10 shall not apply to (1)
the responsibility or liability of a director pursuant to any criminal statute,
or (2) the liability of a director for the payment of taxes pursuant to local,
state or federal law.
(c) The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of guilty or nolo contendre, or its
equivalent, shall not, of itself, create a presumption that the director
breached or failed to perform the duties of his office under Section 8363 of the
DLA and that the breach or failure to perform constituted self-dealing, willful
misconduct or recklessness.
(d) Notwithstanding the date of adoption of this Article 5.10,
the provisions of Article 5.10 shall apply to any actions filed or breaches of
performance of duty or any failure of performance of duty by any director.
(e) No amendment to or repeal of this Article V or the
relevant provisions of the DLA shall reduce the limitation on directors'
personal liability for or with respect to any events, acts or omissions of such
director occurring prior to such amendment or repeal, including, without
limitation, the limitation on personal liability with respect to any Proceedings
commenced after such repeal or modification based in whole or in part upon any
such event, act or omission.
5.11 Scope. If any provision of this Article V or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director or officer, and may
indemnify each employee or agent of the Corporation, as to expenses, liability
and loss (including, without limitation, attorneys' fees and disbursements,
punitive and other damages, judgments, fines penalties, excise taxes assessed
with respect to an employee benefit plan, amounts paid or to be paid in
settlement and costs and expenses of any nature) incurred by him in connection
with any Proceeding, including an action by or in the right of the Corporation,
to the fullest extent permitted by any applicable portion of this Article V that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
ARTICLE VI. Corporate Records and Statement.
6.1 Records. There shall be kept at the principal office of the
Corporation an original or duplicate record of the proceedings of the
shareholders and of the directors, and the original or copy of its By-Laws,
including all amendments or alterations thereto to date. An original or
duplicate share register shall also be kept at the principal office and at the
office of its transfer agent or registrar, giving the names of the shareholders,
their respective addresses, and the number and classes of shares held by each.
The Corporation shall also keep appropriate, complete and accurate books or
records of account, which may be kept at its registered office, or at its
principal place of business.
6.2 Annual Statement. The President and Board of Directors shall
present at each annual meeting of shareholders such statement of the business
and affairs of the Corporation for the preceding year as they shall deem
appropriate. No financial or other statement of the Corporation need be sent to
shareholders unless the Board of Directors shall so determine. Such statements
shall be prepared and presented in whatever manner the Board of Directors shall
deem advisable and need not be verified by a certified public accountant.
ARTICLE VII. Share Certificates Transfer of Stock. Etc.
7.1 Issuance. The Board of Directors shall have the power, by
resolution duly adopted, to issue from time to time, in whole or in part, the
kinds or classes of shares authorized in the Articles of Incorporation.
Share certificates shall bear the signature of the Chief Executive
Officer, Chief Operating Officer, President or Vice President and Secretary or
Assistant Secretary and the corporate seal, which may be a facsimile, engraved
or printed. Where such certificate is signed by a transfer agent or a registrar,
the signatures of the Chief Executive Officer, Chief Operating Officer,
President or Vice President and Secretary or Assistant Secretary upon such
certificate may be facsimiles, engraved or printed.
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7.2 Transfers of Shares. Transfers of shares shall be made on the books
of the Corporation upon surrender of the certificates therefor, endorsed by the
person named in the certificate or by attorney, lawfully constituted in writing.
No transfer shall be made inconsistent with the provisions of the Uniform
Commercial Code or other applicable federal, state or local law.
No transfer or assignment shall affect the right of the Corporation to
pay any dividend due upon the stock, or to treat the registered holder as the
holder in fact, until such transfer assignment is registered on the books of the
Corporation.
7.3 Absolute Owner. The Corporation shall be entitled to treat the
registered holder of any shares as the prima facie owner thereof. If objection
is made by the actual shareholder at the time the ballot is tendered, which
objection is accompanied by a written statement under oath that the person in
whose name such stock is registered is not the true owner thereof, it shall be
the duty of the judges of the election to inquire and determine summarily
whether the facts are as represented in such statement, and if so the vote
tendered shall be rejected.
7.4 Lost Destroyed or Mutilated Certificates. In the event that a share
certificate shall be lost, destroyed or mutilated, a new certificate may be
issued therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
ARTICLE VIII. Miscellaneous Provisions.
8.1 Signatures on Checks. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
8.2 Securities of Other Corporations. The President, or the Secretary,
shall have full power to vote, appoint proxies or otherwise perform any act as a
shareholder with respect to any shares or other securities of any corporation
owned by this Corporation, including the power to sell, convert, exchange,
pledge or encumber such securities.
8.3 Fiscal Year. The fiscal year of the corporation shall end on
October 31.
ARTICLE IX. Amendments.
9.1 These By-Laws may be altered, amended or repealed by a majority of
the holders of all Common Shares entitled to vote (plus the holders of such
other shares as may then be entitled to vote with the holders of Common Shares)
present in person or by proxy at any regular or special meeting duly convened.
These By-Laws may also be altered, amended or repealed by a majority vote of the
members of the Board of Directors, subject always to the power of the
shareholders to change such action.
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