AMENDED AND RESTATED
BY-LAWS
OF
WHG RESORTS & CASINOS INC.
(Formed under the laws of the State of Delaware)
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ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. A meeting of the stockholders shall
be held annually for the election of directors, if necessary, and/or the
transaction of other business on such date in each year as may be determined by
the Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders
may be called only by the Chairman of the Board or President of the Corporation
or by the Board of Directors pursuant to a resolution adopted by a majority vote
of the total number of authorized directors (whether or not there exists any
vacancies in previously authorized directorships at the time any such
resolutions are presented to the Board for adoption). Stockholders of the
Corporation are not permitted to call a special meeting or to require that the
Board call a special meeting of stockholders. The business permitted at any
special meeting of stockholders shall be limited to the business brought before
the meeting by or at the direction of the Board.
Section 3. Place of Meetings. Meetings of stockholders shall
be held at such place, within or without the State of Delaware, as may be fixed
by the Board of Directors. If no place is so fixed, such meetings shall be held
at the office of the Corporation in the State of Delaware.
Section 4. Notice of Meetings. Notice of each meeting of
stockholders shall be given in writing and shall state the place, date and hour
of the meeting, and in the case of a special meeting, the purpose or purposes
for which the meeting is called. Notice of a special meeting shall indicate that
it is being issued by, or at the direction of, the person or persons calling the
meeting.
If, at any meeting, action is proposed to be taken which
would, if taken, entitle objecting stockholders to receive payment for their
shares, the notice shall include a statement of that purpose and to that effect.
A copy of the notice of each meeting shall be given,
personally or by first class mail, not less than 10 nor more than 60 days before
the date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, such notice is given when deposited in the United States mail, with
postage thereon prepaid, directed to the stockholder at his address as it
appears on the record of stockholders. In the event of a change of address, the
stockholder shall file with the Secretary of the Corporation a written request
that his address be changed in the records of the Corporation, in which event
notices to him shall be directed to him at such other address.
When a meeting is adjourned to another time or place, it shall
not be necessary to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken, and at the adjourned
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meeting any business may be transacted that might have been transacted on the
original date of the meeting. However, if after the adjournment the Board of
Directors fixes a new record date for the adjourned meeting, or if the adjourned
meeting is more than 30 days after the adjournment, a notice of the adjourned
meeting shall be given to each stockholder of record on the new record date
entitled to notice under the preceding paragraphs of this Section 4 of this
Article I.
Section 5. Nominations of Directors and Stockholder Proposals.
Nominations for the election of directors and business proposed to be brought
before an annual meeting of stockholders may be made by the Board of Directors
or proxy committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of directors generally. However, any such
stockholder may nominate one or more persons for election as directors at an
annual meeting or propose business to be brought before an annual meeting, or
both, only if such stockholder has given timely notice in proper written form of
his or her intent to make such nomination or nominations or to propose such
business. To be timely, a stockholder's notice must be delivered to or mailed
and received by the Secretary of the Corporation not less than 60 days nor more
than 90 days prior to the annual meeting; provided, however, that in the event
that less than 70 days notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by a stockholder, to be
timely, must be received no later than the close of business on the tenth day
following the date on which such notice of the date of the annual meeting was
made or such public disclosure was made, whichever first occurs. To be in proper
written form, a stockholder's notice to the Secretary shall set forth:
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(1) the name and address of the stockholder who intends to
make the nominations or propose the business and, as the case may be,
of the person or persons to be nominated or of the business to be
proposed;
(2) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting
and, if applicable, intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice;
(3) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder;
(4) such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee
been nominated, or intended to be nominated, or the matter been
proposed, or intended to be proposed, by the Board of Directors, and
such other information about the nominee as the Board of Directors
deems appropriate, including, without limitation, the nominee's age,
business and residence addresses, principal occupation and the class
and number of shares of voting common stock, par value $.01 per share
(the "Voting Common Stock"), beneficially owned by the nominee, or such
other information about the business to be proposed and about the
stockholder making such business proposal before the annual meeting as
the Board of Directors deems
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appropriate, including, without limitation, the class and number of
shares of Voting Common Stock beneficially owned by such stockholder;
and
(5) if applicable, the consent of each nominee to serve as
director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the
nomination of any person or the proposal of any business not made in compliance
with the foregoing procedure.
Section 6. Waiver of Notice. Notice of a meeting need not be
given to any stockholder who submits a signed waiver of notice, in person or by
proxy, whether before or after the meeting. The attendance of any stockholder at
a meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
Section 7. Inspectors of Election. The Board of Directors, in
advance of any stockholders' meeting, may appoint one or more inspectors to act
at the meeting or any adjournment thereof. If inspectors are not so appointed,
the person presiding at a stockholders' meeting may, and on the request of any
stockholder entitled to vote thereat shall, appoint two inspectors. In case any
person 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 such meeting with strict impartiality and according
to the best of his ability.
The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, and the validity
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and effect of proxies, and shall receive votes or ballots, hear and determine
all challenges and questions arising in connection with the right to vote, count
and tabulate all votes or ballots, 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 person presiding at 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 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.
Section 8. List of Stockholders at Meetings. A list of
stockholders as of the record date, certified by the Secretary or Assistant
Secretary or by a transfer agent, shall be prepared at least 10 days prior to
each meeting. Such list shall be open to the examination of any stockholder for
purposes germane to the meeting and may be inspected by any stockholder who is
present. If the right to vote at any meeting is challenged, the inspectors of
election, or person presiding thereat, shall require such list of stockholders
to be produced as evidence of the right of the persons challenged to vote at
such meeting, and all persons who appear from such list to be stockholders
entitled to vote thereat may vote at such meeting.
Section 9. Qualification of Voters. Unless otherwise provided
in the Amended and Restated Certificate of Incorporation of the Corporation as
the same may be hereafter amended (the "Certificate of Incorporation") or any
resolution or resolutions, which may be adopted by the Board of Directors from
time to time, governing the issuance of preferred stock or any series thereof or
non-voting common stock or any series thereof, every stockholder of
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record of Voting Common Stock shall be entitled at every meeting of stockholders
of Voting Common Stock to one vote for every share standing in his name on the
record of stockholders.
Treasury shares as of the record date and shares held as of
the record date by another domestic or foreign corporation of any type or kind,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held as of the record date by the Corporation, shall
not be shares entitled to vote or to be counted in determining the total number
of outstanding shares.
Shares held by an administrator, executor, guardian,
conservator, committee, trustee or other fiduciary, may be voted by him, either
in person or by proxy, without transfer of such shares into his name.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or proxy as
the by-laws of such corporation may provide, or, in the absence of such
provision, as the board of directors of such corporation may determine.
A stockholder shall not sell his vote or issue a proxy to vote
to any person for any sum of money or anything of value except as permitted by
law.
Section 10. Quorum of Stockholders. The holders of a majority
of the shares entitled to vote thereat shall constitute a quorum at a meeting of
stockholders for the transaction of any business, provided that when a specified
item of business is required to be voted on by a class or series, voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum for the transaction of such specified item of business
except as may otherwise be provided in the Certificate of Incorporation.
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When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any stockholders.
The stockholders who are present, in person or by proxy, and
who are entitled to vote may, by a majority of votes cast, adjourn the meeting
despite the absence of a quorum.
Section 11. Proxies. Every stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for him
by proxy.
Every proxy must be signed by the stockholder or his
attorney-in-fact. No proxy shall be valid after the expiration of three years
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the stockholder executing it, except as
otherwise provided by law.
Except as otherwise required by applicable law, the authority
of the holder of a proxy to act shall not be revoked by the incompetence or
death of the stockholder who executed the proxy unless before the authority is
exercised, written notice of an adjudication of such incompetence or of such
death is received by the Secretary or any Assistant Secretary.
Section 12. Vote of Stockholders. Directors shall, except as
otherwise required by law, be elected by a plurality of the votes cast at a
meeting of stockholders by the holders of shares entitled to vote in the
election.
Whenever any corporate action, other than the election of
directors or except as otherwise required by law or the Certificate of
Incorporation, is to be taken by vote of stockholders, it shall, be authorized
by a majority of the votes cast at a meeting of stockholders by the holders of
shares entitled to vote thereon.
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Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders and may not be effected by a consent in writing
by any such stockholders.
Section 13. Fixing Record Date. For the purpose of determining
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or for the purpose of determining stockholders
entitled to receive payment of any dividend or the allotment of any rights, or
for the purpose of any other action, the Board of Directors may fix, in advance,
a date as the record date for any such determination of stockholders. Such date
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.
When a determination of stockholders of record entitled to
notice of or to vote at any meeting of stockholders has been made as provided in
this section, such determination shall apply to any adjournment thereof, unless
the Board of Directors fixes a new record date for the adjourned meeting.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Power of Board and Qualification of Directors. The
business and affairs of the Corporation shall be managed by, or under the
direction of, the Board of Directors. Each director shall be at least eighteen
(18) years of age.
Section 2. Number of Directors. The number of directors shall
be fixed from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in
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previously authorized directorships at the time any such resolution is presented
to the Board for adoption) but in no event shall the total number be less than
five nor more than 15. Until otherwise fixed by the directors, the number of
directors shall be five, divided into three classes as described in Section 3 of
this Article II.
Section 3. Election and Term of Directors. Effective as of the
adoption of these By-law by the Corporation and the filing of the Certificate of
Incorporation with the Secretary of State of the State of Delaware, the
directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of Directors. The
term of the initial Class I directors shall terminate on the date of the 2000
annual meeting of stockholders; the term of the initial Class II directors shall
terminate on the date of the 1999 annual meeting of stockholders; and the term
of the initial Class III directors shall terminate on the date of the 1998
annual meeting of stockholders. At each annual meeting of stockholders beginning
in 1998, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease in directorships shall be apportioned among
the classes so as to maintain the number of directors in each class as nearly
equal as possible, and any additional directors of any class elected to fill a
vacancy resulting from an increase in such class shall hold office only until
the next election of directors of that class by the stockholders of the
Corporation, but in no case will a decrease in the number of directors shorten
the term of any incumbent director. Directors shall hold office until the annual
meeting for the year in which their terms expire and until their successors
shall be duly elected and shall qualify, subject, however, to prior death,
resignation,
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retirement, disqualification or removal from office. Any vacancy on the Board of
Directors, howsoever resulting, including through an increase in the number of
directors, shall only be filled by the affirmative vote of a majority of the
remaining directors then in office, even if less than a quorum, or by the sole
remaining director. Any director elected to fill a vacancy shall hold office for
the same remaining term as that of his or her predecessor, or if such director
was elected as a result of an increase in the number of directors, then for the
term indicated in this Section 3 of this Article II.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the Certificate of Incorporation, these By-laws or the resolution or
resolutions adopted by the Board of Directors creating such class or series, as
the case may be, applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Section 3 of this Article II unless
expressly provided by such terms.
Section 4. Quorum of Directors and Action by the Board. A
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, except that when a Board of one director is authorized,
then one director shall constitute a quorum, and, except where otherwise
provided by these By-laws, the vote of a majority of the directors present at a
meeting at the time of such vote, if a quorum is then present, shall be the act
of the Board.
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Any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consent thereto by the
members of the Board or committee shall be filed with the minutes of the
proceedings of the Board or committee.
Section 5. Meetings of the Board. An annual meeting of the
Board of Directors shall be held in each year directly after the annual meeting
of stockholders. Regular meetings of the Board shall be held at such times as
may be fixed by the Board. Special meetings of the Board may be held at any time
upon the call of the President or any two directors.
Meetings of the Board of Directors shall be held at such
places as may fixed by the Board for annual and regular meetings and in the
notice of meeting for special meetings. If no place is so fixed, meetings of the
Board shall be held at the office of the Corporation.
No notice need be given of annual or regular meetings of the
Board of Directors. Notice of each special meeting of the Board shall be given
to each director either by mail not later than noon, Eastern time, on the third
day prior to the meeting or by telegram, written message or orally to the
director not later than noon, Eastern time, on the day prior to the meeting.
Notices are deemed to have been given: by mail, when deposited in the United
States mail; by telegram at the time of filing; and by messenger and orally at
the time of delivery. Notices by mail, telegram or messenger shall be sent to
each director at the address designated by him for that purpose, or, if none has
been so designated, at his last known residence or business address.
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Notice of a meeting of the Board of Directors need not to be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
A notice, or waiver of notice, need not specify the purpose of
any meeting of the Board of Directors.
A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting to another time and place. Notice of any
adjournment of a meeting to another time or place shall be given, in the manner
described above, to the directors who were not present at the time of the
adjournment and, unless such time and place are announced at the meeting, to the
other directors.
Section 6. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board of Directors, the
President 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 7. Removal of Directors. In accordance with Section
141 of the General Corporation Law of the State of Delaware any or all of the
directors of the Corporation may be removed from office at any time, but only
for cause. A director may be removed only by the affirmative vote of the holders
of eighty percent (80%) of the outstanding stock of the Corporation then
entitled to vote generally for the election of directors, considered for
purposes of this Section 7 of this Article II as one class. Cause is defined as
being convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal,
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or being adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation by a court of competent jurisdiction and such
adjudication is no longer subject to direct appeal.
Section 8. Newly Created Directorships and Vacancies. Newly
created directorships resulting from an increase in the number of directors and
vacancies occurring in the Board of Directors for any reason, may be filled only
by the affirmative vote of a majority of the remaining directors then in office,
even if less than a quorum or by the sole remaining director. Any director
elected to fill a vacancy shall hold office for the same remaining term as that
of his predecessor, or if such director was elected as a result of an increase
in the number of directors, then for the term indicated in Section 3 of this
Article II.
Section 9. Executive and Other Committees of Directors. The
Board of Directors, by resolution adopted by a majority of the entire Board, may
designate from among its members an executive committee and other committees
each consisting of one or more directors and each of which, to the extent
provided in the resolution, shall have all the authority of the Board, except
that no such committee shall have authority as to the following matters:
(1) Approving or adopting, or recommending to the
stockholders of the Corporation, any action or matter expressly required by the
General Corporation Law of the State of Delaware to be submitted to stockholders
for approval; or
(2) Adopting, amending or repealing these By-laws.
pursuant to Section 253 of the General Corporation Law of the State of Delaware.
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The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent or
disqualified member or members at any meeting of such committee.
Unless a greater proportion is required by the resolution
designating a committee, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, and
the vote of a majority of the members present at a meeting at the time of such
vote, if a quorum is then present, shall be the act of such committee.
In the absence or disqualification of a member of any
committee, the member or members present at any meeting of such committee and
not disqualified from voting, whether or not such member or members 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 or disqualified member.
Each such committee shall serve at the pleasure of the Board
of Directors.
Section 10. Compensation of Directors. The Board of Directors
shall have authority to fix the compensation of directors for services in any
capacity.
ARTICLE III
OFFICERS
Section 1. Officers. The Board of Directors, as soon as may be
practicable after the annual election of directors, shall elect a Chairman of
the Board, one or more Vice Chairman, a President, a Secretary and a Treasurer,
and from time to time may elect or appoint
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one or more Vice Presidents or such other officers as it may determine. Any two
or more offices may be held by the same person.
Section 2. Other Officers. 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 3. Compensation. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 4. Term of Office and Removal. Each officer shall hold
office for the term for which he is elected or appointed, and until his
successor has been elected or appointed and qualified. Unless otherwise provided
in the resolution of the Board of Directors electing or appointing an officer,
his term of office shall extend to and expire at the meeting of the Board
following the next annual meeting of stockholders. Any officer may be removed by
the Board, with or without cause, at any time. Removal of an officer without
cause shall be without prejudice to his contract rights, if any, and the
election or appointment of an officer shall not of itself create contract
rights.
Section 5. Power and Duties.
(a) Chairman of the Board: The Chairman of the Board shall
preside at all meetings of the Board of Directors and, in the absence of the
Chief Executive Officer, of the stockholders and shall have such powers and
duties as the Board of Directors assigns to him.
(b) Vice Chairman: The Vice Chairman of the Board shall, in
the absence of the Chairman of the Board, preside at all meetings of the Board
of Directors and, in the absence
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of the Chairman of the Board and the Chief Executive Officer, of the
stockholders and shall have such powers and duties as the Board of Directors and
the Chairman of the Board assign to him.
(c) Chief Executive Officer: The Chief Executive Officer of
the Corporation shall be responsible for the general and active management of
the business of the Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. He shall also preside at all
meetings of the stockholders.
He 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 shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. The Chief Executive
Officer shall counsel freely with the President and shall exercise such other
powers, shall perform such other duties and have such other responsibilities as
may be given from time to time by the Board of Directors or the By-laws of the
Corporation.
(d) President: The President shall have responsibility for
general operation of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors or Chief Executive Officer are
carried into effect. In the absence of the Chairman of the Board or a
Vice-Chairman or in the event of their inability or refusal to act, the
President shall perform the duties and exercise the powers of the Chairman of
the Board. The President shall perform such other duties and have such other
responsibilities as from time to time may be determined by the Board of
Directors.
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(e) Chief Operating Officer: The Chief Operating Officer shall
have responsibility for overseeing the day to day operations of the Corporation
and such other responsibilities as the Chief Executive Officer or the President
may from time to time prescribe.
(f) Chief Financial Officer: The Chief Financial Officer 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.
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 Chairman of the Board, the Chief
Executive Officer, the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as the Chief Financial Officer and of the financial condition of
the Corporation.
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,
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.
(g) Vice Presidents: The Vice Presidents, in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election,
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during the absence or disability of or refusal to act by the President, shall
perform the duties and exercise the powers of the President, and shall perform
such other duties as the Board of Directors shall prescribe.
(h) Treasurer and Assistant Treasurer: The Treasurer shall
have such responsibilities as the Chief Financial Officer may from time to time
prescribe. The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or of
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 Chief Financial Officer may
from time to time prescribe.
(i) Secretary and Assistant Secretary: 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 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.
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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.
Section 6. Books to be Kept. The Corporation shall keep (a)
correct and complete books and records of account, (b) minutes of the
proceedings of the stockholders, Board of Directors and any committees of
directors and (c) a current list of the directors and officers and their
residence addresses; and the Corporation shall also keep at its office or at the
office of its transfer agent or registrar, if any, a record containing the names
and addresses of all stockholders, the number and class of shares held by each
and the dates when they respectively became the owners of record thereof.
The Board of Directors may determine whether and to what
extent and at what times and places and under what conditions and regulations
any accounts, books, records or other documents of the Corporation shall be open
to inspection, and no creditor, security holder or other person shall have any
right to inspect any accounts, books, records or other documents of the
Corporation except as conferred by statute or as so authorized by the
Certificate of Incorporation, these By-laws or a resolution or resolutions.
Section 7. Checks, Notes, etc. All checks and drafts on, and
withdrawals from the Corporation's accounts with banks or other financial
institutions, and all bills of exchange, notes and other instruments for the
payment of money, drawn, made, endorsed, or
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accepted by the Corporation, shall be signed on its behalf by the person or
persons thereunto authorized by, or pursuant to resolution of, the Board of
Directors.
ARTICLE IV
FORMS OF CERTIFICATES AND LOSS AND
TRANSFER OF SHARES
Section 1. Forms of Share Certificates. The shares of the
Corporation shall be represented by certificates, in such forms as the Board of
Directors may prescribe, signed by the Chairman of the Board, the President or a
Vice President and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, and may be sealed with the seal of the Corporation or a
facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation or its employee. In case any officer
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer at
the date of issue.
Each certificate representing shares issued by the Corporation
shall set forth upon the face or back of the certificate, or shall state that
the Corporation will furnish to any stockholder upon request and without charge,
a full statement of the designation, relative rights, preferences and
limitations of the shares of each class of shares, if more than one, authorized
to be issued and the designation, relative rights, preferences and limitations
of each series of any class of preferred shares authorized to be issued so far
as the same have been fixed, and the
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authority of the Board of Directors to designate and fix the relative rights,
preferences and limitations of other series.
Each certificate representing shares shall state upon the face
thereof:
(1) That the Corporation is formed under the laws of the State
of Delaware;
(2) The name of the person or persons to whom issued; and
(3) The number and class of shares, and the designation of the
series, if any, which such certificate represents.
Section 2. Transfers of Shares. Shares of the Corporation
shall be transferable on the record of stockholders upon presentment to the
Corporation or a transfer agent of a certificate or certificates representing
the shares requested to be transferred, with proper endorsement on the
certificate or on a separate accompanying document, together with such evidence
of the payment of transfer taxes and compliance with other provisions of law as
the Corporation or its transfer agent may require.
Section 3. Lost, Stolen or Destroyed Share Certificates. No
certificate for shares of the Corporation shall be issued in place of any
certificate alleged to have been lost, destroyed or wrongfully taken, except, if
and to the extent required by the Board of Directors, upon:
(1) Production of evidence of loss, destruction or wrongful
taking;
(2) Delivery of a bond indemnifying the Corporation and its
agents against any claim that may be made against it or them on account of the
alleged loss, destruction or wrongful taking of the replaced certificate or the
issuance of the new certificate;
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(3) Payment of the expenses of the Corporation and its agents
incurred in connection with the issuance of the new certificate; and
(4) Compliance with such other reasonable requirements as may
be imposed.
ARTICLE V
OTHER MATTERS
Section 1. Corporate Seal. The Board of Directors may adopt a
corporate seal, alter such seal at pleasure, and authorize it to be used by
causing it or a facsimile to be affixed or impressed or reproduced in any other
manner.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be the 12 months ending June 30 or such other period as may be fixed by
the Board of Directors.
Section 3. Amendments. In furtherance, and not in limitation
of the powers conferred by statute, the Board of Directors is expressly
authorized to make, alter, amend, change, add to or repeal the By-laws of the
Corporation and shall have the right (which, to the extent exercised, shall be
exclusive) to establish the rights, powers, duties, rules and procedures that
from time to time shall govern the Board of Directors and each of its members,
including, without limitation, the vote required for any action by the Board of
Directors, and that from time to time shall affect the directors' powers to
manage the business and affairs of the Corporation. In addition, the By-laws of
the Corporation may be adopted, repealed, altered, amended or rescinded by the
affirmative vote of eighty percent (80%) of the outstanding stock of the
Corporation entitled to vote thereon, provided that such By-laws are not
inconsistent with the General Corporation Law of the State of Delaware or the
Certificate of Incorporation, and such
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By-laws relate to the business of the Corporation, the conduct of its affairs,
and its rights or powers, or the rights or powers of its stockholders,
directors, officers or employees. In addition to the powers and authority
hereinbefore or by statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the General Corporation Law of the State of Delaware, the
Certificate of Incorporation, and any Bylaws adopted by the stockholders;
provided, however, that no By-laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
By-laws had not been adopted.
If any By-law regulating an impending election of directors is
made, altered, amended, changed, added or repealed by the Board of Directors,
there shall be set forth in the notice of the next meeting of stockholders for
the election of directors the By-law so made, altered, amended, changed or
repealed, together with a concise statement of the changes made.
Section 4. Indemnification. To the fullest extent permitted by
the General Corporation Law of the State of Delaware, as the same may be amended
and supplemented, no director shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director.
The Corporation shall, to the fullest extent permitted by the General
Corporation Law of the State of Delaware, including but not limited to, Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, (i) indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said section
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(including attorneys' fees), and (ii) advance expenses to any and all said
persons. The indemnification and advancement of expenses provided for herein
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under any provision of the Certificate of Incorporation, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in their official capacities and as to action in another capacity while holding
such offices, and shall continue as to persons who have ceased to be directors,
officers, employees or agents and shall inure to the benefit of the heirs,
executors and administrators of such persons.
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