EXHIBIT 3.5(b)
BY-LAWS
OF
EAP OPERATING, INC.,
A DELAWARE CORPORATION
TABLE OF CONTENTS
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent................................. 1
1.2 Other Offices............................................... 1
ARTICLE TWO: STOCKHOLDERS
2.1 Annual Meeting.............................................. 1
2.2 Special Meeting............................................. 1
2.3 Place of Meetings........................................... 2
2.4 Notice...................................................... 2
2.5 Voting List................................................. 2
2.6 Voting of Shares............................................ 2
2.7 Quorum...................................................... 2
2.8 Required Vote; Withdrawal of Quorum......................... 3
2.9 Method of Voting; Proxies................................... 3
2.10 Record Date................................................. 3
2.11 Conduct of Meeting.......................................... 4
2.12 Inspectors.................................................. 4
2.13 Consent of Stockholders in Lieu of Meeting.................. 5
ARTICLE THREE: DIRECTORS
3.1 Management.................................................. 5
3.2 Number; Election; Term; Qualification....................... 5
3.3 Change in Number............................................ 5
3.4 Removal and Resignation..................................... 5
3.5 Vacancies................................................... 6
3.6 Place of Meetings........................................... 6
3.7 First Meeting............................................... 6
3.8 Regular Meetings............................................ 6
3.9 Special Meetings; Notice.................................... 6
3.10 Quorum; Majority Vote....................................... 7
3.11 Order of Business........................................... 7
3.12 Presumption of Assent....................................... 7
3.13 Compensation................................................ 7
3.14 Action Without a Meeting.................................... 7
ARTICLE FOUR: COMMITTEES
4.1 Designation................................................. 7
4.2 Number; Qualification; Term................................. 8
4.3 Authority................................................... 8
4.4 Committee Changes........................................... 8
4.5 Regular Meetings............................................ 8
4.6 Special Meetings............................................ 8
4.7 Quorum; Majority Vote....................................... 8
4.8 Minutes..................................................... 8
4.9 Compensation................................................ 9
4.10 Responsibility.............................................. 9
ARTICLE FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
5.1 Notice...................................................... 9
5.2 Waiver of Notice............................................ 9
5.3 Telephone and Similar Meetings.............................. 9
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Election; Term of Office.................... 9
6.2 Removal and Resignation..................................... 10
6.3 Vacancies................................................... 10
6.4 Authority................................................... 10
6.5 Compensation................................................ 10
6.6 Chairman of the Board....................................... 10
6.7 President................................................... 10
6.8 Vice Presidents............................................. 10
6.9 Treasurer................................................... 11
6.10 Assistant Treasurers........................................ 11
6.11 Secretary................................................... 11
6.12 Assistant Secretaries....................................... 11
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares..................................... 11
7.2 Consideration for Shares.................................... 12
7.3 Replacement of Lost or Destroyed Certificates............... 12
7.4 Transfer of Shares.......................................... 12
7.5 Registered Stockholders..................................... 12
7.6 Regulations................................................. 13
7.7 Legends..................................................... 13
ARTICLE EIGHT: INDEMNIFICATION OF DIRECTORS AND OFFICERS
8.1 Right to Indemnification.................................... 13
8.2 Advancement of Expenses..................................... 14
8.3 Nonexclusivity of Right to Indemnification.................. 14
8.4 Insurance................................................... 14
8.5 Continued Rights............................................ 14
ARTICLE NINE: MISCELLANEOUS PROVISIONS
9.1 Dividends................................................... 15
9.2 Reserves.................................................... 15
9.3 Books and Records........................................... 15
9.4 Fiscal Year................................................. 15
9.5 Seal........................................................ 15
9.6 Securities of Other Corporations............................ 15
9.7 Invalid Provisions.......................................... 15
9.8 Attestation by the Secretary................................ 15
9.9 Headings; Table of Contents................................. 16
9.10 References.................................................. 16
9.11 Amendments.................................................. 16
BY-LAWS
OF
EAP OPERATING, INC.,
a Delaware corporation
PREAMBLE
The by-laws of the Company ("By-Laws") are subject to, and governed by,
the General Corporation Law of the State of Delaware (the "Delaware General
Corporation Law") and the certificate of incorporation of EAP Operating, Inc., a
Delaware corporation (the "Company"). In the event of a direct conflict between
the provisions of these By-Laws and the mandatory provisions of the Delaware
General Corporation Law or the provisions of the certificate of incorporation of
the Company (the "Certificate of Incorporation"), such provisions of the
Delaware General Corporation Law or the Certificate of Incorporation, as the
case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Company will be as designated from time to time by the appropriate
filing by the Company in the office of the Secretary of State of the State of
Delaware.
1.2 Other Offices. The Company may also have offices elsewhere, both
within and without the State of Delaware, as the board of directors of the
Company (the "Board of Directors") may from time to time determine or as the
business of the Company may require.
ARTICLE TWO: STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Company
(the "Stockholders") will be held each calendar year on the date and at the time
and place as designated from time to time by the Board of Directors and stated
in the notice of the meeting .of in a duly executed waiver of notice of such
meeting. If the date chosen for the meeting is a legal holiday, then the meeting
will be held on the following business day, at the time specified in the notice
or waiver of notice of the meeting. At such meeting, the Stockholders will elect
directors and transact such other business as may properly be brought before the
meeting.
2.2 Special Meeting. A special meeting of the Stockholders may be called
at any time by the chairman of the board of the Company (the "Chairman of the
Board"), the president of the Company (the "President"), the Board of Directors,
or the Stockholders of not less than ten percent of all shares entitled to vote
at such meeting. The date, time and place of the special meeting are to be
designated by the person(s) calling the meeting and must be stated in the notice
of the special meeting or in a duly executed waiver of notice of such meeting.
Only the business stated or indicated in the notice of the special meeting or in
a duly executed waiver of notice of the meeting may be conducted at the special
meeting.
2.3 Place of Meetings. Meetings of Stockholders will be held at the
principal office of the Company unless another place, within or without the
state of Delaware, is designated for meetings in the manner provided in Sections
2.1 and 2.2.
2.4 Notice. Except as otherwise provided by law, written or printed
notice stating the place, day and time of each meeting of the Stockholders and,
in case of a special meeting, the purpose(s) for which the meeting is called,
must be delivered not less than ten nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the President,
the secretary of the Company (the "Secretary") or the officer or person(s)
calling the meeting, to each Stockholder of record entitled to vote at the
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the Stockholder at his address, as it appears on
the Company records.
2.5 Voting List. At least ten days before each meeting of Stockholders,
the secretary or other officer of the Company who has charge of the Company's
stock ledger must prepare a complete list of Stockholders entitled to vote at
the meeting, arranged in alphabetical order, with the address of each
Stockholder and number of shares registered in the name of each Stockholder. For
a period of ten days prior to such meeting, the list must be kept on file at a
place within the city where the meeting is to be held, which place must be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not specified in the notice, at the place where the meeting is to
be held. The voting list will be open to examination by any Stockholder during
ordinary business hours. The list must also be produced at the meeting and kept
there at all times during the meeting and may be inspected by any Stockholder
present. The stock ledger is the only evidence as to who are the Stockholders
entitled to examine the list.
2.6 Voting of Shares. Treasury shares, shares of the Company's own
capital stock belonging to it or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Company, are neither entitled to vote
nor be counted for quorum purposes. Nothing in this section is to be construed
as limiting the right of the Company to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity. All persons holding Company
stock in a fiduciary capacity are entitled to :vote the shares so held. Persons
whose stock is pledged are entitled to vote, unless in the transfer by the
pledgor on the books of the Company, he has expressly empowered the pledgee to
vote thereon, in which case only the pledgee, or his proxy, may represent such
stock and vote thereon.
2.7 Quorum. The holders of a majority of the outstanding shares entitled
to vote on a matter, present in person or by proxy, will constitute a quorum at
any meeting of Stockholders, except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws. If a quorum is not present, in
person or by proxy, at any meeting of Stockholders, the Stockholders entitled to
vote at the meeting and who are present, in person or by proxy, may adjourn the
meeting. If no Stockholder entitled to vote is present, any officer of the
Company may adjourn the meeting without notice other than announcement at the
meeting (unless the Board of Directors, after such adjournment, fixes a new
record date for the adjourned meeting), until a quorum is present, in person or
by proxy. At any adjourned meeting at which a quorum is present, in person or by
proxy, any business may be transacted which may have been transacted at the
original meeting had a quorum been present; provided that, if the adjournment is
for more than
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30 days or if after the adjournment, a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting must be given to each
Stockholder of record entitled to vote at the adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. Directors of the Company are to
be elected, at a Stockholders meeting at which a quorum is present, by a
plurality of the votes of the shares entitled to vote on the election of
directors and present in person or represented by proxy. In all other matters,
except the election of directors and those otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the affirmative vote of the
majority of shares present in person or represented by proxy at a meeting at
which a quorum is present, and entitled to vote on the subject matter, will be
the act of the Stockholders. The Stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Stockholders to leave less than a quorum.
2.9 Method of Voting; Proxies. Except as otherwise provided in the
Certificate of Incorporation or by law, each outstanding share is entitled to
one vote on each matter submitted to a vote at a Stockholders meeting. Elections
of directors need not be by written ballot. At any Stockholders meeting, every
Stockholder having the right to vote or to express consent or dissent to
corporate action in writing without a meeting may do so either in person or by a
proxy executed in writing by the Stockholder or by his duly authorized
attorney-in-fact, or any other means permitted by law. No proxy will be valid
after three years from the date of its execution, unless otherwise provided in
the proxy. If no date is stated in a proxy, such proxy will be presumed to have
been executed on the date of the meeting at which it is to be voted. Each proxy
will be revocable unless it expressly provides that it is irrevocable and is
coupled with an interest sufficient in law to support an irrevocable power or is
otherwise made irrevocable by law.
2.10 Record Date.
(a) Meetings of Stockholders. In order that the Company may determine
the Stockholders entitled to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which
record date may not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date may not be more
than 60 nor less then ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
Stockholders entitled to notice of or to vote at a meeting of Stockholders will
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 determination of Stockholders
of record entitled to notice of or to vote at a meeting of Stockholders will
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) Action Without A Meeting. In order that the Company may determine
the Stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date may not
precede the date upon which the resolution fixing the record is adopted by
the Board of Directors, and which date may not be more than ten days after the
date upon which the resolution fixing the record date is adopted by
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the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining Stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by law, will be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Company by delivery to its registered office in this State, its
principal place of business or an officer or agent of the Company having custody
of the book in which proceedings of meetings of Stockholders are recorded.
Delivery made to the Company's registered office must 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 Stockholders entitled to
consent to corporate action in writing without a meeting will be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action.
(c) Dividends, Distributions, Other Actions. In order for the Company to
determine the Stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the Stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which record date may not precede the date upon which the resolution
fixing the record date is adopted, and which record date may not be more than 60
days prior to such action. If no record date is fixed, the record date for
determining Stockholders for any such purpose will be at the close of business
on the day of which the Board of Directors adopts the resolution relating
thereto.
2.11 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President will preside at all meetings of Stockholders. The
Secretary will keep the records of each meeting of Stockholders. In the absence
or inability to act of any such officer, the officer's duties must be performed
by the officer given the authority to act for the absent or non-acting officer
under these By-Laws or by some person(s) appointed at the meeting.
2.12 Inspectors. The Board of Directors may, in advance of any meeting of
Stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof and make a written report thereof. If any of the inspectors
so appointed fails to appear or act or if inspectors have not been appointed,
the chairman of the meeting may appoint one or more inspectors. Each inspector,
before entering upon the discharge of his duties, must 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 are to
determine the number of shares of capital stock of the Company outstanding and
the voting power of each, the number of shares represented at the meeting, the
existence of a quorum and the validity and effect of proxies. Furthermore, they
are to 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 results and do such acts as are proper
to conduct the election or vote with fairness to all Stockholders. On request of
the chairman of the meeting, the inspectors must make a report in writing of any
challenge, request or matter determined by them and must execute a certificate
of any fact found by them. No director or candidate for the office of director
may act as an inspector of an election of directors. Inspectors need not be
Stockholders.
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2.13 Consent of Stockholders in Lieu of Meeting. Except as otherwise
provided by law or by the Certificate of Incorporation, any action required to
be taken, or which may be taken, by law, the Certificate of Incorporation or
these By-Laws, at any annual or special meeting of Stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent(s) in
writing, setting forth the action taken, is signed by the holders of shares 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 the holders of
all shares entitled to vote on the action were present and voted, provided that
(a) such consent is executed and delivered in a manner consistent with Delaware
law and (b) prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent is given to those Stockholders
who have not consented in writing.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Company will be managed
by and under the Board of Directors. Subject to the restrictions imposed by law,
the Certificate of Incorporation or these By-Laws, the Board of Directors may
exercise all the powers of the Company.
3.2 Number; Election; Term; Qualification. The number of directors which
constitutes the entire Board of Directors shall be not less than one. The first
Board of Directors will consist of the number of directors named in the
Certificate of Incorporation or, if no directors are so named, will consist of
the number of directors elected by the incorporator(s) at an organizational
meeting or by unanimous written consent in lieu of the organizational meeting.
Thereafter, within the limits above specified, the number of directors which
constitutes the entire Board of Directors will be determined by resolution of
the Board of Directors or by resolution of the Stockholders at the annual
meeting or at a special meeting called for that purpose. Except as otherwise
required by law, the Certificate of Incorporation or these By-Laws, the
directors will be elected at an annual meeting of Stockholders at which a quorum
is present and in accordance with the provisions for election of directors set
forth in Section 2.8, supra. Each director chosen in this manner will hold
office until the first annual meeting of Stockholders held after his election
and until his successor is elected and qualified or, if earlier, until his
death, resignation, or removal from office. No director need be a Stockholder of
the Company or a Delaware resident. Acceptance of the office of director may be
expressed orally or in writing.
3.3 Change in Number. A decrease in the number of directors constituting
the entire Board of Directors will not have the effect of shortening the term of
any incumbent director.
3.4 Removal and Resignation. At any meeting of Stockholders or, whenever
permitted by law and the Certificate of Incorporation, without a meeting by
their written consents thereto, any director or the entire Board of Directors
may be removed, with or without cause, by a vote of the holders of a majority of
the shares then entitled to vote on the election of directors; provided,
however, that if the Stockholders have the right to cumulate votes in the
election of directors pursuant to the Certificate of Incorporation, if less than
the entire Board of Directors is to be removed, no one of the directors may be
removed if the votes cast against his removal would be sufficient to elect him
if then cumulatively voted at an election of the entire Board of Directors.
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Any director may resign at any time. The resignations must be made in
writing and will take effect at the time specified therein, or if no time is
specified, at the time of its receipt by the Chairman of the Board, if any, the
President or the Secretary. The acceptance of a resignation will not be
necessary to make it effective, unless expressly so provided in the resignation.
3.5 Vacancies. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director. Each director so chosen will hold office until the first
annual meeting of Stockholders held after his election and until his successor
is elected and qualified or, if earlier, until his death, resignation or removal
from office. If there are no directors in office, an election of directors may
be held in the manner provided by statute. If, at the time of filling any
vacancy or any newly-created directorship, the directors then in office
constitute less than a majority of the whole Board of Directors (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any Stockholder(s) holding at least 10% of the total number of
the shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or
newly-created directorships or to replace the directors chosen by the directors
then in office. Except as otherwise provided in these By-Laws, when one or more
directors resign from the Board of Directors, effective at a future date, a
majority of the directors then in office, including those who have so resigned,
will have the power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation(s) become effective, and each director so chosen
will hold office as provided in these By-Laws with respect to the filling of
other vacancies.
3.6 Place of Meetings. The Board of Directors may hold its meetings and
may have an office(s) in such place(s), within or without the State of Delaware,
as the Board of Directors may from time to time determine or as is specified in
the notice of such meeting or duly executed waiver of notice of such meeting.
3.7 First Meeting. Each newly elected Board of Directors may hold its
first organizational meeting, if a quorum is present, immediately after and at
the same place as the annual meeting of Stockholders. Notice of such meeting is
not necessary.
3.8 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such times and places as designated from time to time by
resolution of the Board of Directors and communicated to all directors.
3.9 Special Meetings; Notice. Special meetings of the Board of Directors
will be held whenever called by the Chairman of the Board, the President or any
director. The Secretary must give notice or the person calling the special
meeting must cause notice to be given of each special meeting to each director
at least one day before the meeting. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting. Unless
limited by law, by the Certificate of Incorporation or by the By-Laws, any and
all business may be transacted at any special meeting of directors.
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3.10 Quorum; Majority Vote. At all meetings of the Board of Directors, a
majority of the directors fixed in the manner provided in these By-Laws will
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting, a majority of the directors present or any director solely present
may adjourn the meeting, without further notice other than an announcement at
the meeting until a quorum is present. Unless the act of a greater number is
required by law, the Certificate of Incorporation or these By-Laws, the act of a
majority of the directors present at a meeting at which a quorum is in
attendance will be the act of the Board of Directors. At any time that the
Certificate of Incorporation provides that directors elected by the holders of a
class or series of stock will have more or less than one vote per director on
any matter, every reference in these By-Laws to a majority or other proportion
of directors will refer to a majority or other proportion of the votes of such
directors.
3.11 Order of Business. At meetings of the Board of Directors, business
shall be transacted in such order as the Board of Directors may determine. The
Chairman of the Board, if any, and, if none or if the Chairman of the Board is
absent or otherwise unable to act, the President is to preside at all meetings
of the Board of Directors. In the absence or inability to act of either officer,
a chairman is to be chosen by the Board of Directors from among the directors
present. The Secretary is to act as the secretary of each meeting of the Board
of Directors unless the Board of Directors appoints another person to act as
secretary of the meeting. The regular minutes of the proceedings must be placed
in the minute book of the Company.
3.12 Presumption of Assent. A director of the Company who is present at
any meeting of the Board of Directors at which action on any Company matter is
taken will be presumed to have assented to the action unless his dissent is
entered in the minutes of the meeting or unless he files his written dissent to
such action with the person acting as secretary of the meeting before the
adjournment thereof or forwards any dissent by certified or registered mail to
the Secretary immediately after the adjournment of the meeting. Such right to
dissent does not apply to a director who voted in favor of such action.
3.13 Compensation. The Board of Directors has the authority to fix the
compensation, including fees and reimbursement of expenses, paid to directors
for attendance at regular or special meetings of the Board of Directors or any
committee thereof; provided, however, that nothing contained herein be construed
10 preclude any director from serving the Company in any other capacity or
receiving compensation therefor.
3.14 Action Without a Meeting. Unless otherwise restricted by the
Certificate of Incorporation or By-Laws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing(s) are filed with the minutes of
proceedings of the Board, or committee.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The Board of Directors may, by resolution adopted by a
majority of the entire Board of Directors, designate one or more committees.
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4.2 Number; Qualification; Term. Each committee will consist of one or
more directors appointed by resolution adopted by a majority of the entire Board
of Directors. The Board of Directors may designate one or more directors as
alternate members of any committee. Any such alternate member may replace any
absent or disqualified member at any meeting of the committee. If no alternate
committee members have been so appointed to a committee or each alternate
committee member is absent or disqualified, the member(s) of the committee
present at any meeting and not disqualified from voting, whether or not a quorum
is present, 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. The
number of committee members may be increased or decreased by resolution adopted
by a majority of the entire Board of Directors. Each committee member shall
serve as such until the earliest of (a) the expiration of his term as director,
(b) his resignation as a committee member or as a director, or (c) his removal
as a committee member or as a director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, will have and may exercise all of the
authority of the Board of Directors in the management of the business and
property of the Company except to the extent expressly restricted by law, the
Certificate of Incorporation or these By-Laws. A committee of the Board of
Directors may be given the power and authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to the Delaware General Corporation Law.
4.4 Committee Changes. The Board of Directors will have the power at any
time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated by the committee and
communicated to all its members.
4.6 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting must cause notice of such special meeting, including the time
and place of such special meeting, to be given to each committee member at least
two days before the meeting. Neither the business to be transacted at, nor the
purpose of, any special meeting of any committee need be specified in the notice
or waiver of notice of the special meeting.
4.7 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the Board of Directors will constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting,
without notice, other than an announcement at the meeting, until a quorum is
present. The act of a majority of the members present at any meeting at which a
quorum is in attendance will be the act of the committee, unless the act of a
greater number is required by law, the Certificate of Incorporation or these
By-Laws.
4.8 Minutes. The minutes of the proceedings of each committee must be
prepared and the committee must report the minutes to the Board of Directors
upon the request of the
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Board of Directors. The minutes of the proceedings of each committee must be
delivered to the Secretary for placement in the Company's minute books.
4.9 Compensation. Committee members may, by resolution of the Board of
Directors, be allowed a stated salary or a fixed sum and expenses of attendance,
if any, for attending any committee meetings.
4.10 Responsibility. The designation of any committee and the delegation
of authority to it will not operate to relieve the Board of Directors or any
director of any responsibility imposed upon it or any director by law.
ARTICLE FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
5.1 Notice. Whenever by law, the Certificate of Incorporation or these
By-Laws, notice is required to be given to any committee member, director or
Stockholder and no provision is made as to how such notice must be given, any
such notice may be given (a) in person, (b) in writing, by mail, postage
prepaid, addressed to such committee member, director or Stockholder at his
address as it appears on the books or, in the case of a Stockholder, the stock
transfer records of the Company or (c) by any other method permitted by law. Any
notice required or permitted to be given by mail will be deemed to be given at
the time it is deposited in the United States mail. Any notice required or
permitted to be given by overnight courier service will be deemed to be given at
the time delivered to such service with all charges prepaid and properly
addressed. Any notice required or permitted to be given by telegram, telex or
telefax will be deemed to be given at the time transmitted with all charges
prepaid and properly addressed.
5.2 Waiver of Notice. Whenever by law, the Certificate of Incorporation
or these By-Laws, any notice is required to be given to any Stockholder,
director or committee member, a waiver thereof in writing signed by the
person(s) entitled to such notice, whether before or after the time notice
should have been given, will be equivalent to the giving of such notice.
Attendance of a Stockholder, director or committee member at a meeting will
constitute a waiver of notice of such meeting, except where such person attends
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
5.3 Telephone and Similar Meetings. Stockholders, directors or committee
members may participate in meetings and hold meetings by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meetings can hear each other. Participation in such a
meeting will constitute presence in person at the meeting, except where a person
participates for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Election; Term of Office. The officers of the
Company will be a President, a Secretary and any other officers as the Board of
Directors may from time to time elect or appoint, including, but not limited to,
a Chairman of the Board, a Chief Executive Officer, one or more vice presidents
(the "Vice Presidents(s)"), a treasurer (the "Treasurer"), one
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or more Assistant Secretaries, and one or more Assistant Treasurers. Unless
otherwise specified by these By-Laws or by resolution of the Board of Directors,
at the first meeting of the Board of Directors after each annual meeting of
Stockholders at which a quorum is present, the Board of Directors shall elect
the officers. Each officer will hold office until his successor has been duly
elected and qualified until his death or until he resigns or has been removed in
the manner provided here. Any two or more offices may be held by the same
person. None of the officers need be a Stockholder or Company director.
6.2 Removal and Resignation. Any officer or agent elected or appointed
by the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the Company will be served thereby, but such
removal will be without prejudice to the contract rights, if any, of the person
removed. Election or appointment of an officer or agent will not of itself
create contract rights. An officer may resign at any time upon written notice to
the Company. The acceptance of a resignation will not be necessary to make it
effective unless so provided in the resignation.
6.3 Vacancies. Any vacancy occurring in any office of the Company may be
filled by the Board of Directors.
6.4 Authority. Officers will have the authority and perform such duties
in the management of the Company as provided in these By-Laws or as may be
determined by resolution of the Board of Directors not inconsistent with these
By-Laws.
6.5 Compensation. The compensation, if any, of officers and agents will
be fixed from time to time by the Board of Directors; provided, however, that
the Board of Directors may by resolution delegate to anyone or more officers the
authority to fix such compensation.
6.6 Chairman of the Board. The Chairman of the Board, if one is elected
by the Board of Directors, will have those powers and duties as prescribed by
the Board of Directors.
6.7 President. Unless and to the extent that such powers and duties are
expressly delegated to a Chairman of the Board by the Board of Directors, the
President will be the chief executive officer of the Company and, subject to the
supervision of the Board of Directors, will have general management and control
of the business and property of the Company in the ordinary course of its
business with all powers with respect to general management and control
reasonably incident to such responsibilities, including, but not limited to, the
power to employ, discharge or suspend employees and agents, to fix the
compensation of employees and agents and to suspend, with or without cause, any
officer pending final action by the Board of Directors with respect to continued
suspension, removal or reinstatement of such officer.
6.8 Vice Presidents. Each Vice President, if any, will have those powers
and duties assigned to him by the Board of Directors, or delegated by the
Chairman of the Board or the President. The Vice Presidents, in the order
designated by the Board of Directors or, in the absence of such a designation,
as determined by the length of time each has held the office of Vice President,
will exercise the powers of the President during the President's absence or
inability to act.
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6.9 Treasurer. The Treasurer will have the care and custody of all the
Company funds and must deposit them in such banks or other depositories as the
Board of Directors or any officer(s), or any officer and agent jointly, duly
authorized by the Board of Directors, direct or approve. He must keep a full and
accurate account of all monies received and paid on account of the Company and
must render a statement of his accounts whenever the Board of Directors so
requires. Except as otherwise provided by the Board of Directors, he must
perform all other necessary acts and duties in connection with the
administration of the Company's financial affairs and generally perform all the
duties usually appertaining to the office of the Treasurer. Whenever required by
the Board of Directors, he must give bonds for the faithful discharge of his
duties in such sums and with such securities as the Board of Directors may
approve. In the absence of the Treasurer, the person designated by the Chairman
of the Board, if any, or the President will perform his duties.
6.10 Assistant Treasurers. Each assistant treasurer, if any, of the
Company ("Assistant Treasurer") will have those powers and duties assigned to
him by the Board of Directors, or delegated by the Chairman of the Board or the
President. The Assistant Treasurers, in the order as designated by the Board of
Directors or, in the absence of such a designation, as designated by the length
of time they have held the office of Assistant Treasurer, will exercise the
powers of the Treasurer during the Treasurer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these By-Laws, the
Secretary must keep the minutes of all meetings of the Board of Directors, of
any committee and of the Stockholders, or consents in lieu of such meetings in
the Company's minute books and must cause notice of the meetings to be given
when requested by any person authorized to call a meeting. The Secretary may
sign with the Chairman of the Board or the President, in the name of the
Company, all contracts of the Company and affix the Company seal (if any)
thereto. The Secretary may sign with the Chairman of the Board or the President
all Company Stock certificates, and he is in charge of the certificate books,
share transfer records, stock ledgers and any other stock books and papers as
the Board of Directors may direct, all of which must, at all reasonable times,
be open to inspection by any director at the Company office during business
hours. The Secretary, will in general, perform such other duties incident to the
office of the Secretary, or as assigned by the Board of Directors or delegated
by the Chairman of the Board or the President.
6.12 Assistant Secretaries. Each assistant secretary, if any, of the
Company ("Assistant Secretary") will have those powers and duties assigned to
him by the Board of Directors or delegated by the Chairman of the Board or the
President. The Assistant Secretaries, in the order as designated by the Board of
Directors or, in the absence of such a designation, as determined by the length
of time they have held the office of Assistant Secretary, will exercise the
powers of the Secretary during the Secretary's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Company will be in the form approved by the Board of Directors. The certificates
must be signed by the Chairman of the Board or the President or a Vice President
and also by the Secretary or an Assistant Secretary or by the Treasurer or an
Assistant Treasurer. Any and all signatures on the
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certificates may be a facsimile and may be sealed with the Company seal or a
facsimile thereof. If any officer, transfer agent or registrar who has signed,
or whose facsimile signature has been placed upon, a certificate has ceased to
be an officer, transfer agent or registrar before the certificate is issued, the
certificate may be issued by the Company with the same effect as if he were an
officer, transfer agent or registrar at the date of issue. The certificates must
be consecutively numbered and entered in the Company books as they are issued
and must exhibit the holder's name and the number of shares. The Board of
Directors may provide by resolution(s) that some or all of any or all classes or
series of its stock will be uncertificated shares. However, any such resolution
will not apply to shares represented by a certificate until that certificate is
surrendered to the Company. Notwithstanding the adoption of such a resolution,
every holder of uncertificated shares is entitled, upon request, to have a
certificate signed as prescribed above.
7.2 Consideration for Shares. The consideration for subscriptions to, or
the purchase of shares of capital stock to be issued by the Company, must be
paid in the form and in the manner that the Board of-Directors determines. In
the absence of actual fraud in the transaction, the judgment of the Directors as
to the value of such consideration will be conclusive. Capital stock so issued
will be considered fully paid and nonassessable so long as the par value or
stated value allocated to capital is paid in full by consideration in the form
of cash, services rendered, personal or real property, leases of real property
or a combination thereof. The balance or surplus in the subscription or purchase
price of the stock, if the directors so determine, may be supplied by a binding
obligation of the subscriber or purchaser to pay the balance of the price.
7.3 Replacement of Lost or Destroyed Certificates. The Board of
Directors may issue a new certificate of stock or uncertificated shares in place
of any certificate issued by it, alleged to have been lost, stolen or destroyed,
and the Board of Directors may require the owner of the lost, stolen or
destroyed certificate, or his legal representative to give the Company a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of the certificate or the
issuance of a new certificate of stock or uncertificated shares.
7.4 Transfer of Shares. Upon surrender to the Company or its transfer
agent of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it will be the
duty of the Company to issue a new certificate to the person entitled to the new
certificate, cancel the old certificate and record the transaction upon its
books. Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares will be cancelled and issuance
of new equivalent uncertificated shares or certificated shares will be made to
the person entitled thereto and the transaction will be recorded upon the books
of the Company.
7.5 Registered Stockholders. The Company will be entitled to treat the
holder of record of any share(s) of stock as the holder in fact thereof and,
accordingly, will not be bound to recognize any equitable or other claim to such
share(s) on the part of any other person, whether or not it has express or other
notice thereof, except as otherwise provided by law.
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7.6 Regulations. The Board of Directors will have the power and
authority to make all such rules and regulations as they deem expedient
concerning the issue, transfer, registration or the replacement of certificates
for shares of Company stock.
7.7 Legends. The Board of Directors will have the power and authority to
provide that certificates representing shares of stock bear those legends that
the Board of Directors deems appropriate to assure that the Company complies
with applicable federal or state securities laws or other laws.
ARTICLE EIGHT: INDEMNIFICATION OF DIRECTORS AND OFFICERS
8.1 Right to Indemnification.
(a) The Company may indemnify, to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may be amended in the
future (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than the
law permitted the Company to provide prior to such amendment), 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, arbitrative or investigative (hereafter, in this Article Eight,
collectively referred to as a "Proceeding") (other than an action by or in the
right of the Company), by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including reasonable attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
The termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, will not, of
itself create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal Proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Company, may indemnify, to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may be amended in the
future (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than the
said law permitted the Company to provide prior to such amendment), any person
who was or is a party or is threatened to be made a party to any Proceeding
brought by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company, as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including reasonable attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any
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criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful; provided, however, that no indemnification may be made with respect to
any claim, issue or matter as to which such person has been adjudged to be
liable to the Company, unless and only to the extent that the Court of Chancery
or the court in which such Proceeding was brought determines, upon application,
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
those expenses which the Court of Chancery or other court may deem proper.
(c) The Company must indemnify any director, officer, employee or agent
of the Company to the extent he has been successful on the merits or otherwise
in defense of any Proceeding against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) The determination that indemnification of the director, officer,
employee or agent is proper under the circumstances because he has met the
applicable standard of conduct set forth in subparagraphs (a) and (b) above
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such Proceeding, or (2) if such
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion or (3)
by the Stockholders.
8.2 Advancement of Expenses. The Company may advance the expenses
(including reasonable attorneys' fees) incurred by an officer or director in
defending any Proceeding prior to the final disposition of the Proceeding upon
receipt of an undertaking by or on behalf of the director or officer to repay
the amount if it is ultimately determined that he is not entitled to be
indemnified by the Company under Delaware General Corporation Law, as the same
exists or may be amended in the future.
Expenses (including reasonable attorneys' fees) incurred by other
employees and agents may be paid upon those terms and conditions that the Board
of Directors deems appropriate.
8.3 Nonexclusivity of Right to Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, the provisions of
this Article Eight are not to be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
the By-Laws, any agreement or vote of Stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding that office.
8.4 Insurance. The Company will have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under this Article Eight or Delaware General Corporation Law or both.
8.5 Continued Rights. The indemnification and advance of expenses
provided by this Article Eight will, unless otherwise provided when authorized,
continue as to a person who has
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ceased to be a director, officer, employee or agent and will inure to the
benefit of the heirs, executors and administrators of that person.
ARTICLE NINE: MISCELLANEOUS PROVISIONS
9.1 Dividends. Dividends upon the capital stock of the Company, subject
to the provisions of the Certificate of Incorporation and applicable statutes,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, property or shares of
the capital stock.
9.2 Reserves. Before payment of any dividend, there may be set aside out
of any funds of the Company available for dividends the sum(s) that the
directors, in their absolute discretion, think proper as a reserve(s) to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Company or for such other purpose as the directors may find
conducive to the interests of the Company, and the directors may modify or
abolish any reserve in the manner in which it was created.
9.3 Books and Records. The Company must keep correct and complete books
and records of account and must keep minutes of the proceedings of its
Stockholders and Board of Directors. The Company must keep at its registered
office or principal place of business or at the office of its transfer agent or
registrar, a record of the original issuance of shares by the Company and a
record of each transfer of those shares that have been presented to the Company
for registration of transfer, giving the names and addresses of all past and
current Stockholders and the number and class of the shares held by each.
9.4 Fiscal Year. The fiscal year of the Company will be fixed by the
Board of Directors; provided, however, that if the fiscal year is not fixed by
the Board of Directors and the selection of the fiscal year is not expressly
deferred by the Board of Directors, the fiscal year will be the calendar year.
9.5 Seal. The seal of the Company will be in the form approved from time
to time by the Board of Directors.
9.6 Securities of Other Corporations. The chief executive officer (or
any other officers designated by the Board of Directors) will have the power and
authority to transfer, endorse for transfer, vote, consent or take any other
action with respect to any securities of another issuer which may be held or
owned by the Company and to make, execute and deliver any waiver, proxy or
consent with respect to any such securities.
9.7 Invalid Provisions. If any part of these By-Laws is held invalid or
inoperative for any reason, the remaining parts, so far as possible and
reasonable, will remain valid and operative.
9.8 Attestation by the Secretary. With respect to any deed, deed of
trust, mortgage or other instrument executed by the Company through its duly
authorized officer(s), the attestation to such execution by the Secretary will
not be necessary to constitute such deed, deed of trust, mortgage or other
instrument a valid and binding obligation against the Company unless the
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resolutions, if any, of the Board of Directors authorizing such execution
expressly state that such attestation is necessary.
9.9 Headings; Table of Contents. The headings and table of contents used
in these By-Laws have been inserted for administrative convenience only and do
not constitute matter to be construed in the interpretation of these By-Laws.
9.10 References. In these By-Laws, whenever the singular number is used,
the same includes the plural where appropriate and words of any gender include
each other gender where appropriate.
9.11 Amendments. These By-Laws may be altered, amended or repealed or new
by-laws may be adopted by the Stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation, at any regular or special meeting of the Stockholders or of the
Board of Directors if notice of such alteration, amendment, repeal or adoption
of new by-laws is contained in the notice of any such meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the Board of Directors by the
Certificate of Incorporation, it shall not divest or limit the power of
Stockholders to adopt new by-laws or amend or repeal these By-Laws.
These By-Laws were adopted by the sole member of the Board of Directors of
the Company to be effective as of February 23, 1999.
/s/ Bruce B. Selkirk, III
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Bruce B. Selkirk, III, Sole Director
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