Exhibit 3.44
BY-LAWS
OF
EVEREST THREE IPA, INC.
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ARTICLE I
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IDENTIFICATION; OFFICES
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SECTION 1.1. Name. The name of the corporation is Everest Three IPA, Inc.
(the "Corporation").
SECTION 1.2. Registered Offices; Other Offices. The registered office of
the Corporation in the State of New York shall be in Bronx, New York and in
Bronx County. The Corporation may have such other offices, either within or
outside of the State of New York, as the business of the Corporation may require
from time to time.
ARTICLE II
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SHAREHOLDERS
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SECTION 2.1. Annual Meeting. An annual meeting of the shareholders shall be
held on the last Wednesday in January of each year, or on such other date as may
be determined by resolution of the Board of Directors; provided, however, that
if in any year such date is a legal holiday, such meeting shall be held on the
next succeeding business day. At each annual meeting, the shareholders shall
elect a Board of Directors and transact such other business as may properly be
brought before the meeting.
SECTION 2.2. Special Meeting. A special meeting of the shareholders may be
called by the President of the Corporation, the Board of Directors, or by such
other officers or persons as the Board of Directors may designate.
SECTION 2.3. Place of Shareholder Meetings. The Board of Directors may
designate any place, either within or without the State of New York, as the
place of meeting for any annual meeting or for any special meeting. If no such
place is designated by the Board of Directors, the place of meeting will be the
principal business office of the Corporation.
SECTION 2.4. Notice of Meetings. Unless waived as herein provided, whenever
shareholders are required or permitted to take any action at a meeting, written
notice of the meeting shall be given stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Such notice may be written or electronic. Such
written notice shall be given not less than ten (10) days nor more than sixty
(60) days before the date of the meeting to each shareholder entitled to vote at
the meeting. If mailed, notice is given when deposited in the United States
mail, postage prepaid, directed to the shareholder at the shareholder's address
as it appears on the records of the Corporation. If transmitted electronically,
such notice is given when directed to the shareholders' electronic mail address
as supplied to the secretary of the Corporation.
When a meeting is adjourned to another time or place in accordance with
Section 2.5 of these By-Laws, notice need not be given of the adjourned meeting
if the time and place thereof are announced at the meeting in which the
adjournment is taken. At the adjourned meeting the Corporation may conduct any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the
meeting.
SECTION 2.5. Quorum and Adjourned Meetings. Unless otherwise provided by
law or the Corporation's Certificate of Incorporation, a majority of the shares
entitled to vote, present in person or represented by proxy, shall constitute a
quorum at a meeting of shareholders. If less than a majority of the shares
entitled to vote at a meeting of shareholders is present in person or
represented by proxy at such meeting, a majority of the shares so represented
may adjourn the meeting from time to time without further notice. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting. The shareholders
present at a meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of such number of shareholders as may leave less
than a quorum.
SECTION 2.6. Fixing of Record Date.
(a) For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or for the
purpose of any other action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at 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. A
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determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting;
(b) For the purpose of determining shareholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is established by the Board of Directors, and
which date shall not be more than ten (10) days after the date on which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining shareholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of New York, its principal office, or an
officer or agent of the Corporation having custody of the book in which the
proceedings of meetings of shareholders are recorded. Delivery to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining shareholders' consent to corporate action in writing
without a meeting shall be the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action; and
(c) For the purpose of determining the shareholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
shareholders entitled to exercise any rights in respect to any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix the record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining the
shareholders for any such purpose shall be the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
SECTION 2.7. Voting List. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days before every
meeting of shareholders, a complete list of shareholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
Such list shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (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 place
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of the meeting during the whole time thereof, and may be inspected by any
shareholder who is present.
SECTION 2.8. Voting. Unless otherwise provided by the Certificate of
Incorporation, each shareholder shall be entitled to one vote for each share of
capital stock held by each shareholder. In all matters other than the election
of directors, the affirmative vote of the majority of shares present in person
or represented by proxy at the meeting and entitled to vote on the subject
matter shall be the act of the shareholders. Directors shall be elected by
plurality of the votes of the shares present in person or represented by a proxy
at the meeting entitled to vote on the election of directors.
SECTION 2.9. Proxies. Each shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be valid after the expiration of eleven (11)
months from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may remain irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
SECTION 2.10. Ratification of Acts of Directors and Officers. Except as
otherwise provided by law or by the Certificate of Incorporation of the
Corporation, any transaction or contract or act of the Corporation or of the
directors or the officers of the Corporation may be ratified by the affirmative
vote of the holders of the number of shares which would have been necessary to
approve such transaction, contract or act at a meeting of shareholders, or by
the written consent of shareholders in lieu of a meeting.
SECTION 2.11. Informal Action of Shareholders. Any action required to be
taken at any annual or special meeting of shareholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
shareholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those shareholders who
have not consented in writing. In the event that the action which is consented
to is such as would have required the filing of a certificate with any
governmental body, if such action had been voted on by shareholders at a meeting
thereof, the certificate filed shall state, in lieu of any statement required by
law concerning any vote of shareholders, that written consent had been given in
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accordance with the provisions of Section 615 of the Business Corporation Law of
New York, and that written notice has been given as provided in such section.
SECTION 2.12. Organization. Such person as the Board of Directors may
designate or, in the absence of such a designation, the president of the
Corporation or, in his or her absence, such person as may be chosen by the
holders of a majority of the shares entitled to vote who are present, in person
or by proxy, shall call to order any meeting of the shareholders and act as
chairman of such meeting. In the absence of the secretary of the Corporation,
the chairman of the meeting shall appoint a person to serve as secretary at the
meeting.
ARTICLE III
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DIRECTORS
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SECTION 3.1. Number and Tenure of Directors. The number of directors of
the Corporation shall be no less than one (1) or no more than seven (7) members.
Each director shall hold office until such director's successor is elected and
qualified or until such director's earlier resignation or removal. Any director
may resign at any time upon written notice to the Corporation.
SECTION 3.2. Election of Directors. Directors shall be elected at the
annual meeting of shareholders. In all elections for directors, every
shareholder shall have the right to vote the number of shares owned by such
shareholder for each director to be elected.
SECTION 3.3. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board, the President
or at least one-third of the number of directors constituting the whole board.
The person or persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the State of New York, as
the place for holding any special meeting of the Board of Directors called by
them.
SECTION 3.4. Notice of Special Meetings of the Board of Directors. Notice
of any special meeting of the Board of Directors shall be given at least one (1)
day previous thereto by written notice to each director at his or her address.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States Mail so addressed, with first-class postage thereon prepaid. If
sent by any other means (including facsimile, courier, or express mail, etc.),
such notice shall be deemed to be delivered when actually delivered to the home
or business address of the director.
SECTION 3.5. Quorum. A majority of the total number of directors fixed by
these By-Laws, or in the absence of a By-Law which fixes the number of
directors, the number stated in the Certificate of Incorporation or named by the
incorporators,
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shall constitute a quorum for the transaction of business. If less than a
majority of the directors are present at a meeting of the Board of Directors, a
majority of the directors present may adjourn the meeting from time to time
without further notice.
SECTION 3.6. Voting. The vote of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the Business Corporation Law of the State of New York or the
Certificate of Incorporation requires a vote of a greater number.
SECTION 3.7. Vacancies. Vacancies in the Board of Directors may be filled
by a majority vote of the Board of Directors or by an election either at an
annual meeting or at a special meeting of the shareholders called for that
purpose. Any directors elected by the shareholders to fill a vacancy shall hold
office for the balance of the term for which he or she was elected. A director
appointed by the Board of Directors to fill a vacancy shall serve until the next
meeting of shareholders at which directors are elected.
SECTION 3.8. Removal of Directors. A director, or the entire Board of
Directors, may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors; provided,
however, that if cumulative voting obtains and less than the entire Board of
Directors is to be removed, no director may be removed without cause if the
votes cast against such director's removal would be sufficient to elect him if
then cumulatively voted at an election of the entire Board of Directors.
SECTION 3.9. Informal Action of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
SECTION 3.10. Participation by Conference Telephone. Members of the Board
of Directors, or any committee designated by such board, may participate in a
meeting of the Board of Directors, or committee thereof, by means of conference
telephone or similar communications equipment as long as all persons
participating in the meeting can speak with and hear each other, and
participation by a director pursuant to this Section 3.10 shall constitute
presence in person at such meeting.
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ARTICLE IV
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WAIVER OF NOTICE
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SECTION 4.1. Written Waiver of Notice. A written waiver of any required
notice, signed by the person entitled to notice, whether before or after the
date stated therein, shall be deemed equivalent to notice. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of
shareholders, directors or members of a committee of directors need be specified
in any written waiver of notice.
SECTION 4.2. Attendance as Waiver of Notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, and objects at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE V
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COMMITTEES
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SECTION 5.1 General Provisions. The Board of Directors may, by resolution
passed by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member at any meeting of a
committee, the member or members thereof present at any meeting 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. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the shareholders the sale, lease, or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the shareholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution so provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a certificate
of merger.
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SECTION 6.1. General Provisions. The Board of Directors shall elect a
President and a Secretary of the Corporation. The Board of Directors may also
elect a Chairman of the Board, one or more Vice Chairmen of the Board, one or
more Vice Presidents, a Treasurer, one or more Assistant Secretaries and
Assistant Treasurers and such additional officers as the Board of Directors may
deem necessary or appropriate from time to time. Any two or more offices may be
held by the same person. The officers elected by the Board of Directors shall
have such duties as are hereafter described and such additional duties as the
Board of Directors may from time to time prescribe.
SECTION 6.2. Election and Term of Office. The officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of
the Board of Directors held after each annual meeting of the shareholders. If
the election of officers is not held at such meeting, such election shall be
held as soon thereafter as may be convenient. New offices of the Corporation
may be created and filled and vacancies in offices may be filled at any time, at
a meeting or by the written consent of the Board of Directors. Unless removed
pursuant to Section 6.3 of these By-Laws, each officer shall hold office until
his successor has been duly elected and qualified, or until his earlier death or
resignation. Election or appointment of an officer or agent shall not of itself
create contract rights.
SECTION 6.3. Removal of Officers. Any officer or agent elected or
appointed by the Board of Directors may be removed with or without cause by the
Board of Directors whenever, in its judgment, the best interests of the
Corporation would be served thereby. Removal without cause shall be without
prejudice to the contract rights, if any, of the person(s) so removed.
SECTION 6.4. Determination of the Chief Executive Officer. The Board of
Directors shall designate whether the Chairman of the Board, if one shall have
been chosen, or the President shall be the Chief Executive Officer of the
Corporation. If a Chairman of the Board has not been chosen, or if one has been
chosen but not designated Chief Executive Officer, then the President shall be
the Chief Executive Officer of the Corporation.
SECTION 6.5. President/Chief Executive Officer. The President/Chief
Executive Officer shall be the principal executive officer of the Corporation
and, subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the Corporation. The
President/Chief Executive Officer shall preside at all meetings of the
shareholder and at any meeting of the Board of Directors when the Chairman of
the Board is absent. The President/Chief Executive Officer shall see that
orders and resolutions of the Board of Directors are carried into effect and may
sign bonds, mortgages, certificates for shares and all other contracts and
documents requiring execution on behalf of the Corporation.
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ARTICLE VI
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OFFICERS
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SECTION 6.6. The Chairman of the Board. The Chairman of the Board, if one
is chosen, shall be chosen from among the members of the board. If the Chairman
of the Board has not been designated Chief Executive Officer, the Chairman of
the Board shall perform such duties as may be assigned to the Chairman of the
Board by the Chief Executive Officer or by the Board of Directors.
SECTION 6.7. Vice Chairman of the Board. In the absence of the Chief
Executive Officer or in the event of his inability or refusal to act, if the
Chairman of the Board has been designated Chief Executive Officer, the Vice
Chairman, or if there be more than one, the Vice Chairmen, in the order
determined by the Board of Directors, shall perform the duties of the Chief
Executive Officer, and when so acting shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. At all other
times, the Vice Chairman or Vice Chairmen shall perform such duties and have
such powers as the Chief Executive Officer or the Board of Directors may from
time to time prescribe.
SECTION 6.8. The Vice President. The Vice President shall have such powers
and perform such duties as from time to time assigned by the Board of Directors
or the President. The Vice President shall have all the powers of and perform
all the duties of the President in the event of the President's absence or
inability to act.
SECTION 6.9. The Secretary. The Secretary shall attend and keep minutes of
the meetings of the Board of Directors, the shareholder and any standing
committee, as well as any additional meetings of the Corporation. The Secretary
shall give, or cause to be given, notice of all meetings of the shareholder and
the Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or the President. The Secretary shall have custody of
the corporate seal and shall affix it to all proper instruments when deemed
advisable by him or her. The Secretary shall be responsible for all of the books
and records of the Corporation except the financial books and records kept by
the Chief Financial Officer/Treasurer.
SECTION 6.10. The Assistant Secretary. 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
Chief Executive Officer or the Board of Directors may from time to time
prescribe.
SECTION 6.11. Chief Financial Officer/Treasurer. The Chief Financial
Officer shall have custody of the Corporation's funds and securities, shall keep
full and accurate account of receipts and disbursements in books and records
belonging to the Corporation and shall deposit all monies and other valuable
effects in the name of and to the credit of the Corporation in such depositories
as may be designated by the Board of Directors. The Chief Financial Officer
shall disburse the funds of the
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Corporation as may be ordered by the shareholder, taking proper vouchers for
such disbursements, and shall render to the President and shareholder, at
regular meetings, or when the shareholder so requires, an account of all his or
her transactions as Chief Financial Officer and of the financial condition of
the Corporation. The Chief Financial Officer may act on behalf of the
Corporation and sign documents requiring execution in connection with any
financial accommodations, subject to the control of the Board of Directors, and
agreements which may from time to time regulate any financial relationship of
the Corporation. The Chief Financial Officer may sign bonds, mortgages,
certificates for shares and all other contracts and documents requiring
execution on behalf of the Corporation, except as otherwise prohibited. The
Chief Financial Officer shall restore to the Corporation, in case of his or her
death, resignation, retirement or removal from office, all books, papers,
vouchers, money and other property of whatever kind in his or her possession or
under his or her control belonging to the Corporation. The Chief Financial
Officer may from time to time delegate any such duties to any Treasurer.
SECTION 6.12. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as the Chief Executive Officer or the Board of Directors may from time to
time prescribe.
SECTION 6.13. Duties of Officers May be Delegated. 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 the powers or duties, or
any of such powers or duties, of any officers or officer to any other officer or
to any director.
SECTION 6.14. Compensation. The Board of Directors shall have the
authority to establish reasonable compensation of all officers for services to
the Corporation.
ARTICLE VII
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CERTIFICATES FOR SHARES
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SECTION 7.1. Certificates of Shares. The shares of the Corporation shall
be represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in
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the name of the Corporation by the Chairman or Vice Chairman of the Board of
Directors, Chief Executive Officer, or the President or Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation representing the number of shares registered in
certificate form.
SECTION 7.2. Signatures of Former Officer, Transfer Agent or Registrar. In
case any officer who has signed 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 such person were such officer at the date of issue.
SECTION 7.3. Transfer of Shares. Transfers of shares of the Corporation
shall be made only on the books of the Corporation by the holder of record
thereof or by his, her or its legal representative, who shall furnish proper
evidence of authority to transfer, or by his, her or its attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation, and on surrender for cancellation of certificate for such
shares. Prior to due presentment of a certificate for shares for registration of
transfer, the Corporation may treat a registered owner of such shares as the
person exclusively entitled to vote, to receive notifications and otherwise have
and exercise all of the right and powers of an owner of shares.
SECTION 7.4. Lost, Destroyed or Stolen Certificates. Whenever a
certificate representing shares of the Corporation has been lost, destroyed or
stolen, the holder thereof may file in the office of the Corporation an
affidavit setting forth, to the best of his knowledge and belief, the time,
place, and circumstance of such loss, destruction or theft together with a
statement of indemnity sufficient in the opinion of the Board of Directors to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss of any such certificate. Thereupon the board may
cause to be issued to such person or such person's legal representative a new
certificate or a duplicate of the certificate alleged to have been lost,
destroyed or stolen. In the exercise of its discretion, the Board of Directors
may waive the indemnification requirements provided herein.
ARTICLE VIII
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DIVIDENDS
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SECTION 8. Dividends. The Board of Directors of the Corporation may
declare and pay dividends upon the shares of the Corporation's capital stock in
any form determined by the Board of Directors, in the manner and upon the terms
and conditions provided by law.
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ARTICLE IX
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CONTRACTS, LOANS, CHECKS AND DEPOSITS
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SECTION 9.1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 9.2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 9.3. Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by one or more officers or agents of the
Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 9.4. Deposits. The funds of the Corporation may be deposited or
invested in such bank account, in such investments or with such other
depositaries as determined by the Board of Directors.
ARTICLE X
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AMENDMENTS
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SECTION 10. Amendments. These By-Laws may be adopted, amended or repealed
by either the Corporation's Board of Directors or its shareholders; provided,
however, regarding indemnification of directors, Article XI may only be amended
by the Corporation's shareholders.
ARTICLE XI
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INDEMNIFICATION
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SECTION 11.1 Indemnification. The Corporation shall indemnify, in
accordance with and to the full extent now or hereafter permitted by law, 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 (including, without limitation, any
action by or in the right of the Corporation), by reason of his acting as a
director of the Corporation (and the Corporation, in the sole discretion of the
Board of Directors, may so indemnify a person by reason of the fact that he is
or was an officer or employee of the
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Corporation or is or was serving at the request of the Corporation in any other
capacity for or on behalf of the Corporation) against any liability or expense
actually and reasonably incurred by such person in respect thereof; provided,
however, that the Corporation shall not be obligated to indemnify any such
director (i) with respect to proceedings, claims or actions initiated or brought
voluntarily by such person and not by way of defense or brought against such
person in response to a proceeding, claim or action by such person against the
Corporation, or (ii) for any amounts paid in settlement of an action effected
without the prior written consent of the Corporation to such settlement or,
(iii) if liability was incurred because the director breached or failed to
perform a duty he owes to the corporation and the breach or failure to perform
constitutes (a) a willful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which the director has a material
conflict of interest, (b) a violation of criminal law, unless the director had
reasonable cause to believe his conduct was lawful or no reasonable cause to
believe his conduct was unlawful, (c) a transaction from which the director
derived an improper personal profit, or (d) willful misconduct. The termination
of a proceeding by judgment, order, settlement or conviction, or upon a plea of
no contest or an equivalent plea, shall not, by itself, create a presumption
that indemnification of the director or officer is not required. A director or
officer who seeks indemnification shall make a written request to the
Corporation. Such indemnification is not exclusive of any other right to
indemnification provided by law, agreement or otherwise.
SECTION 11.2 Determination of Right to Indemnification. Unless otherwise
provided by the Corporation's Certificate of Incorporation, these By-Laws, or
written agreement between the director or officer, the determination as to right
to indemnification shall be made by a majority vote of a quorum of the Board of
Directors consisting of directors not at the time parties to the same or related
proceedings. If a quorum of disinterested directors cannot be obtained, the
determination will be made by majority vote of a committee duly appointed by the
Board of Directors and consisting solely of two or more directors not at the
time parties to the same or related proceedings. Directors who are parties to
the same or related proceedings may participate in the designation of members of
the committee.
-13- By-Laws of Everest Three IPA, Inc.