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As filed with the Secretary of State of
the State of Delaware on August 7, 1998
CERTIFICATE OF INCORPORATION
OF
INVESTMENT PRODUCT SERVICES, INC.
FIRST: The name of the corporation is INVESTMENT PRODUCT
SERVICES, INC.
SECOND: The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, State of Delaware in the County of New Castle, 19801. The name of
its registered agent at that address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares which the Corporation
shall have authority to issue is 1,000 and the par value of each of such shares
is $.01 amounting in the aggregate to $10.00.
FIFTH: The Board of Directors is authorized to make, alter or
repeal the By-Laws of the Corporation, as provided in the By-Laws. A Director
of this Corporation shall not be liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent that such exemption from liability or limitation thereof is not
permitted under the General Corporation Law of the State of Delaware as the
same exists or may hereafter be amended. Any repeal or modification of the
foregoing shall not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or omission
occurring prior to such repeal or modification. Election of directors need not
be by ballot.
SIXTH: The name and mailing address of the Incorporator is:
David M. Mahle, Esq., c/o Jones, Day, Reavis & Pogue, 599 Lexington Avenue, New
York, New York 10022.
THE UNDERSIGNED, being the Incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation
Law of
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Delaware, does make this certificate, hereby declaring and certifying that this
is his act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 6th day of August, 1998.
/s/ DAVID M. MAHLE
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David M. Mahle, Incorporator
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Adopted August 7, 1998
B Y - L A W S
OF
INVESTMENT PRODUCT SERVICES, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE.--The registered office shall be
established and maintained at the office of The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware 19801, County of New Castle, and said
corporation shall be the registered agent of this corporation in charge
thereof.
SECTION 2. OTHER OFFICES.--The Corporation may have offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may, from time to time, appoint or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS.--Annual meetings of stockholders
for the election of directors and for such other business as may be stated in
the notice of the meeting, may be called by the directors or any officer
instructed by the directors to call the meeting and shall be held at such
place, either within or without the State of Delaware, and at such time and
date as the Board of Directors, by resolution, shall determine and as set forth
in the notice of the meeting. In the event the Board of Directors fails to so
determine the time, date and place of meeting, the annual meeting of
stockholders, commencing with the year 1999, shall be held on the 16th day of
November.
If the date of the annual meeting shall fall upon a legal
holiday, the meeting shall be held on the next succeeding business day. At
each annual meeting, the stock-holders entitled to vote shall elect a Board of
Directors and they may transact such other corporate business as shall be
stated in the notice of meeting.
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SECTION 2. OTHER MEETINGS.--Meetings of stockholders for any
purpose other than the election of directors may be held at such time and
place, within or without the State of Delaware, as shall be stated in the
notice of the meeting.
SECTION 3. TELEPHONIC MEETINGS.--Meetings may be held by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this paragraph shall constitute presence
in person at a meeting.
SECTION 4. VOTING.--Each stockholder entitled to vote in
accordance with the terms of the Certificate of Incorporation and in accordance
with the provisions of these By-Laws shall be entitled to one vote, in person
or by proxy, for each share of stock entitled to vote held by such stockholder,
but no proxy shall be voted after three years from its date unless such proxy
provides for a longer period. Upon demand of any stockholder, the vote for
directors and the vote upon any question before the meeting shall be by ballot.
All elections for directors shall be decided by plurality vote and all other
questions shall be decided by majority vote, except as otherwise provided by
the Certificate of Incorporation or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address of each and
the number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 5. CONDUCT OF MEETING.--Meetings of the stockholders
shall be presided over by one of the following officers in the order of
seniority and if present and acting: the Chairman of the Board, if any, the
Vice-Chairman of the Board, if any, the President, a Vice-President, or, if
none of the foregoing is in office and present and acting, by a chairman to be
chosen by the stockholders. The Secretary of the Corporation or, in his
absence, an Assistant Secretary, shall act as secretary of every meeting, but
if neither the Secretary nor an Assistant Secretary is present, the Chairman of
the meeting shall appoint a secretary of the meeting.
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SECTION 6. INSPECTORS--The directors, in advance of any
meeting, may, but need not, appoint one or more Inspectors of Election to act
at the meeting or any adjournment thereof. If an Inspector or Inspectors are
not appointed, the person presiding at the meeting may, but need not, appoint
one or more Inspectors. In case any person who may be appointed as an Inspector
fails to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the meeting by the person presiding
thereat. Each Inspector, if any, 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, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the Inspector or Inspectors, if
any, shall make a report in writing of any challenge, question or matter
determined by him or them and execute a certificate of any fact found by him or
them.
SECTION 7. QUORUM.--Except as otherwise required by Law, by
the Certificate of Incorporation or by these By-Laws, the presence, in person
or by proxy, of stockholders holding a majority of the stock of the Corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting, from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present. At such adjourned meeting, the requisite amount of
stock entitled to vote at the meeting, as originally noticed, shall be entitled
to vote at any adjournment or adjournments thereof.
SECTION 8. NOTICE OR WAIVER OF NOTICE OF MEETINGS.--Written
notice, stating the place, date and time of the meeting and the general nature
of the business to be considered, shall be given to each stockholder entitled
to vote thereat at his address as it appears on the records of the Corporation,
not less than ten nor more than sixty days before the date of the meeting. No
business other than that stated in the notice shall be transacted at any
meeting without the unanimous consent of all the stockholders entitled to vote
thereat. Attendance of a stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
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SECTION 9. ACTION WITHOUT MEETING.--Unless otherwise provided
by the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM.--The number of directors shall
initially be two or more. The directors shall be elected at the annual meeting
of the stockholders and each director shall be elected to serve until his
successor shall be elected and shall qualify. Directors need not be
stockholders.
SECTION 2. RESIGNATIONS.--Any director, member of a committee
or other officer may resign at any time. Such resignation shall be made in
writing, and shall take effect at the time specified therein and, if no time be
specified, at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES.--If the office of any director, member
of a committee or other office becomes vacant, the remaining directors in
office, though less than a quorum, by a majority vote, may appoint any
qualified person to fill such vacancy, such appointee to hold office for the
unexpired term and until his successor shall be duly chosen.
SECTION 4. REMOVAL.--Any director or directors may be removed
either for or without cause at any time by the affirmative vote of the holders
of a majority of all the shares of stock outstanding and entitled to vote, at a
special meeting of the stockholders called for the purpose and the vacancies
thus created may be filled, at the meeting held for the purpose of removal, by
the affirmative vote of a majority in interest of the stockholders entitled to
vote.
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SECTION 5. INCREASE OR DECREASE OF NUMBER.--The number of
directors may be increased or decreased from time to time by resolution of the
Board of Directors or by majority vote of the stockholders at the annual
meeting or at a special meeting called for that purpose and, by like vote, the
additional directors may be chosen at such meeting to hold office until the
next annual election and until their successors are elected and qualify.
SECTION 6. POWERS.--The Board of Directors shall exercise all
of the powers of the Corporation except such as are by Law, or by the
Certificate of Incorporation of the Corporation or by these By-Laws conferred
upon or reserved to the stockholders.
SECTION 7. COMMITTEES.--The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate
one or more committees, each committee to consist of two 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
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 or
disqualified director.
Any such committee, to the extent provided in the resolution
of the Board of Directors, or in these By-Laws, 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; however, 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 stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-Laws of the Corporation; and, unless by resolution, these
By-Laws, or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
SECTION 8. MEETINGS.--The newly elected directors may hold
their first meeting for the purpose of organization and the transaction of
business if a quorum be present immediately after the annual meeting of the
stockholders or the time and place of such meeting may be fixed by consent in
writing of all the directors. Attendance of a
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director at a meeting of directors shall constitute a waiver of notice of such
meeting, except when the director attends the meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Regular meetings of the directors may be held without notice
at such places and times as shall be determined from time to time by resolution
of the directors.
Special meetings of the Board may be called by the President
or by the Secretary on the written request of any two directors on at least two
days' notice to each director and shall be held at such place or places as may
be determined by the directors, or as shall be stated in the call of the
meeting.
SECTION 9. TELEPHONIC MEETINGS.--Meetings may be held by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other and
participation in a meeting pursuant to this paragraph shall constitute presence
in person at a meeting.
Any member or members of the Board of Directors or of any
committee designated by the Board may participate in a meeting of the Board or
any such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other.
SECTION 10. QUORUM.--A majority of the Board of Directors
shall constitute a quorum for the transaction of business. If, at any meeting
of the Board, there shall be less than a quorum present, a majority of those
present may adjourn the meeting from time to time until a quorum is obtained,
and no further notice thereof need be given other than by announcement at the
meeting which shall be adjourned.
SECTION 11. COMPENSATION.--Directors shall not receive any
stated salary for their services as directors or as members of committees but,
by resolution of the Board of Directors, fixed fees and expenses of attendance
may be allowed for attendance at each meeting. Nothing herein contained shall
be construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent or otherwise, and receiving compensation
therefor.
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SECTION 12. ACTION WITHOUT MEETING.--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, prior to such action, a
written consent thereto is signed by all members of the Board or of such
committee, as the case may be, and such written consent is filed with the
minutes of the proceedings of the Board or such committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS.--The officers of the Corporation shall
be a President, a Treasurer, and a Secretary, all of whom shall be elected by
the Board of Directors and who shall hold office until their successors are
elected and qualified. In addition, the Board of Directors may elect a
Chairman, one or more Vice-Presidents and such Assistant Secretaries and
Assistant Treasurers as they may deem proper. None of the officers of the
Corporation need be directors. The officers shall be elected at the first
meeting of the Board of Directors and at each annual meeting. More than two
offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS.--The Board of Directors
may appoint such other officers and agents as it may deem advisable, such
officers to hold their offices for such terms and to exercise such powers and
perform such duties as shall be determined, from time to time, by the Board of
Directors.
SECTION 3. CHAIRMAN.--The Chairman of the Board of Directors,
if one be elected, shall preside at all meetings of the Board of Directors and
he shall have and perform such other duties as, from time to time, may be
assigned to him by the Board of Directors.
SECTION 4. PRESIDENT.--The President shall be the chief
executive officer of the Corporation and shall have the general powers and
duties of supervision and management usually vested in the office of President
of a corporation. He shall preside at all meetings of the stockholders, if
present thereat and in the absence or non-election of the Chairman of the Board
of Directors, and shall have general supervision, direction and control of the
business of the Corporation. Except as the Board of Directors shall authorize
the execution thereof in some other manner, he shall execute bonds, mortgages
and other contracts in behalf of the Corporation and shall cause the seal to be
affixed to
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any instrument requiring it and, when so affixed, the seal shall be attested by
the signature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer.
SECTION 5. VICE-PRESIDENT.--Each Vice-President shall have
such powers and shall perform such duties as shall be assigned to him by the
Board of Directors.
SECTION 6. THE TREASURER.--The Treasurer shall have custody
of the corporate funds and securities and shall keep full and accurate account
of receipts and disbursements in books belonging to the Corporation. He shall
deposit all monies and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the Corporation, as
may be ordered by the Board of Directors or the President, taking proper
vouchers for such disbursements. He shall render to the President and the
Board of Directors at the regular meetings of the Board of Directors, or
whenever they may request it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond for the faithful discharge of
his duties in such amount and with such surety as the Board shall prescribe.
SECTION 7. SECRETARY.--The Secretary shall give, or cause to
be given, notice of all meetings of stockholders and directors and all other
notices required by law or by these By-Laws and, in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the President or by the directors or by the stockholders,
upon whose requisition the meeting is called as provided in these By-Laws. He
shall record all the proceedings of the meetings of the Corporation and of the
directors in a book to be kept for that purpose and shall perform such other
duties as may be assigned to him by the directors or the President. He shall
have the custody of the seal of the Corporation and shall affix the same to all
instruments requiring it, when authorized by the directors or the President,
and attest the same.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT
SECRETARIES.--Assistant Treasurers and Assistant Secretaries, if any, shall be
elected and shall have such powers and shall perform such duties as shall be
assigned to them, respectively, by the directors.
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ARTICLE V
INDEMNIFICATION AND INSURANCE
SECTION 1. INDEMNIFICATION. -- (a) The Corporation shall
indemnify, and hold harmless, to the fullest extent then permitted by law, any
person (and the heirs, executors, and administrators of such 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 (other than an action by or in the right of the Corporation),
by reason of the fact that he or she is or was a member of the Board of
Directors, an officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorney's fees and
disbursements), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding. (b) The Corporation shall indemnify, and hold harmless, to the
fullest extent then 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 or
suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fee and disbursements) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit. (c) The Corporation shall pay such fees and expenses as they are
incurred, in advance of the final disposition thereof, and may pay, in the same
manner and to the fullest extent then permitted by law, such expenses incurred
by any other person upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized under
law or this section. (d) Notwithstanding the foregoing or any other provision
of these By-Laws, no advance shall be made by the Corporation to an agent or
non-officer employee if a determination is reasonably and promptly made by the
Board of Directors by a majority vote of those Directors who have not been
named parties to the action, even though less than a quorum, or, if there are
no such Directors of if such Directors so direct, by independent legal counsel,
that, based upon the facts known to the Board of Directors or such counsel at
the time such determination is made: (1) The person seeking advancement of
expenses (i) acted in bad faith, or (ii) did not act in a manner that he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation; (2) with respect to any criminal proceeding, such person believed
or had reasonable cause to believe that his or her conduct was unlawful; or (3)
such person deliberately breached his or her duty to the Corporation. (e) The
indemnification and payment of expenses provided hereby shall not be
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exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under any law, the Certificate of Incorporation, any
agreement, vote of stockholders or disinterested members of the Board of
Directors, or otherwise, both as to action in official capacities and as to
action in another capacity while he or she is a member of the Board of
Directors or an officer of the Corporation, and shall continue as to a person
who has ceased to be a member of the Board of Directors, trustee or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person. (f) Notwithstanding the foregoing, but subject to subsection (h), the
Corporation shall be required to indemnify any person identified in subsections
(a) or (b) in connection with a proceeding (or part thereof) initiated by such
person only if the initiation of such proceeding (or part thereof) by such
person was authorized by the Board of Directors. (g) Any repeal or
modification of the foregoing provisions of this Article shall not adversely
affect any right or protection hereunder of any person respecting any act or
omission occurring prior to the time of such repeal or modification. (h) If a
claim for indemnification or advancement of expenses under this Article is not
paid in full within 60 days after a written claim therefor by an indemnified
person has been received by the Corporation, the indemnified person may file
suit to recover the unpaid amount of such claim and, if successful in whole or
in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action, the Corporation shall have the burden of proving that the
indemnified person is not entitled to the requested indemnification or
advancement of expenses under Delaware law.
SECTION 2. INSURANCE. -- The Corporation may, to the fullest
extent then permitted by law and authorized by the Board of Directors, purchase
and maintain insurance or furnish similar protection, including but not limited
to trust funds, letters of credit or self-insurance, on behalf of or for any
persons described in Section 6.1 against any liability asserted against and
incurred by any such person in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to indemnify such
person against such liability. Insurance may be purchased from or maintained
with a person in which the Corporation has a financial interest.
SECTION 3. AGREEMENTS. -- The Corporation, upon approval by
the Board of Directors, may enter into agreements with any persons whom the
Corporation may indemnify under these By-Laws or under law, including employees
or agents of the Corporation or those serving at the request of the Corporation
as an employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, and undertake thereby to indemnify such persons and
to pay the expenses incurred by them in defending any action, suit or
proceeding against them, whether or not the Corporation would have the power
under these By-Laws or law to indemnify any such person.
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ARTICLE VI
CONFLICTS OF INTEREST; CONTRACTS AND
TRANSACTIONS INVOLVING DIRECTORS
SECTION 1. CONFLICT OF INTEREST.--A Director or a member of a
committee shall not directly or indirectly participate in any adjudication of
the interests of any party if that Director or committee member has a conflict
of interest or bias, or if circumstances otherwise exist where his or her
fairness might reasonably be questioned. In any such case, the Director or
committee member shall recuse himself or herself or shall be disqualified.
SECTION 2. CONTRACTS AND TRANSACTIONS INVOLVING
DIRECTORS.--No contract or transaction between the Corporation and one or more
of its Directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its Directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason if: (i)
the material facts pertaining to such Director's or officer's relationship or
interest and the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good faith
authorizes the contract or trnasaction by the affirmative vote of a majority of
the disinterested Directors; (ii) the material facts are disclosed or become
known to the Board of Directors or committee after the contract or transaction
is entered into, and the Board of Directors or committee in good faith ratifies
the contract or transaction by the affirmative vote of a majority of the
disinterested Directors; or (iii) the material facts pertaining to the
Director's or officer's relationship or interest and the contract or
transaction are disclosed or are known to the stockholder entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholder. Only disinterested Directors may be counted in
determining the presence of a quorum at the portion of a meeting of the Board
of Directors or of a committee that authorizes the contract or transaction.
This subsection shall not apply to a contract or transaction between the
Corporation and the National Association of Securities Dealers, Inc. ("NASD")
or NASD Regulation.
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ARTICLE VII
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK.--Certificates of stock,
signed by the Chairman or Vice Chairman of the Board of Directors, if they be
elected, the President or Vice-President, and the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, shall be issued to each
stockholder certifying the number of shares owned by him in the Corporation.
Any of or all the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES.--A new certificate of stock may
be issued in the place of any certificate theretofore issued by the
Corporation, alleged to have been lost or destroyed, and the directors may, in
their discretion, require the owner of the lost or destroyed certificate, or
his legal representatives, to give the Corporation a bond, in such sum as they
may direct not exceeding double the value of the stock, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss of any such certificate or the issuance of any such new
certificate.
SECTION 3. TRANSFER OF SHARES.--The shares of stock of the
Corporation shall be transferrable only upon its books by the holders thereof
in person or by their duly authorized attorneys or legal representatives and,
upon such transfer, the old certificates shall be surrendered to the
Corporation by the delivery thereof to the person in charge of the stock and
transfer books and ledgers or to such other person as the directors may
designate, by whom they shall be canceled and new certificates shall thereupon
be issued. A record shall be made of each transfer and whenever a transfer
shall be made for collateral security, and not absolutely, it shall be so
expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE.--In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purposes of any other lawful action, the Board of
Directors may fix, in advance, a record date which shall not be more than sixty
nor less than ten days before the date of such meeting nor more than sixty days
prior to any other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
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SECTION 5. DIVIDENDS.--Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor, at any regular or special meeting, declare dividends upon
the capital stock of the Corporation as and when they deem such dividends
expedient. Before declaring any dividend, there may be set apart, out of any
funds of the Corporation available for dividends, such sum or sums as the
directors, from time to time, in their discretion, deem proper for working
capital or as a reserve fund to meet contingencies or for equalizing dividends
or for such other purposes as the directors shall deem conducive to the best
interests of the Corporation.
SECTION 6. SEAL.--The corporate seal shall be circular in
form and shall contain the name of the Corporation, the year of its creation
and the words "CORPORATE SEAL DELAWARE". Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR.--The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
SECTION 8. CHECKS.--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 such officer or officers or agent or
agents of the Corporation, and in such manner as shall be determined, from time
to time, by resolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE.--Whenever any notice
is required to be given by these By-Laws, personal notice is not meant unless
expressly so stated and any notice so required shall be deemed to be sufficient
if given by depositing the same in the United States mail, postage prepaid,
addressed to the person entitled thereto at his address as it appears on the
records of the Corporation, and such notice shall be deemed to have been given
on the day of such mailing. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
Statute.
Whenever any notice whatever is required to be given under the
provisions of any law or under the provisions of the Certificate of
Incorporation of the Corporation or of these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
Attendance at a meeting shall constitute a waiver of notice of such meeting
except when such attendance is for the express purpose of objecting at the
beginning of
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the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE VIII
AMENDMENTS
These By-Laws may be altered or repealed and new By-Laws may
be made at any annual meeting of the stockholders or at any special meeting
thereof if notice of the proposed alteration or repeal of any By-Law or By-Laws
to be made be contained in the notice of such special meeting by the
affirmative vote of a majority of the stock issued and outstanding and entitled
to vote thereat or by the affirmative vote of a majority of the Board of
Directors, at any regular or special meeting of the Board of Directors, if
notice of the proposed alteration or repeal of any By-Law or By-Laws to be
made, be contained in the notice of such regular or special meeting.
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