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Exhibit 3.5.2
BYLAWS
OF
F.G.G. INVESTMENTS, INC.
TABLE OF CONTENTS
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I. OFFICES
1.01 Registered Office
1.02 Other Offices
II. SHAREHOLDERS
2.01 Place and Manner of Meetings
2.02 Annual Meeting
2.03 Voting List
2.04 Special Meetings
2.05 Notice
2.06 Quorum
2.07 Majority Vote; Withdrawal of Quorum
2.08 Method of Voting
2.09 Fixing Record Dates for Matters Other than
Consents to Action; Closing Transfer Books
2.10 Fixing Record Dates for Consents to Action
2.11 Action Without Meeting
III. DIRECTIONS
3.01 Management
3.02 Number; Qualification; Election; Term
3.03 Change in Number
3.04 Removal
3.05 Vacancies
3.06 Election of Directors
3.07 Place and Manner of Meetings
3.08 First Meetings
3.09 Regular Meetings
3.10 Special Meetings
3.11 Action Without Meeting
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3.12 Quorum; Majority Vote
3.13 Compensation
3.14 Procedure
3.15 Interested Directors, Officers and Shareholders
IV. COMMITTEES OF THE BOARD OF DIRECTORS
4.01 Designation
4.02 Authority
4.03 Procedure
4.04 Removal
4.05 Responsibility
V. OFFICERS
5.01 Number
5.02 Election
5.03 Other Officers
5.04 Term
5.05 Removal
5.06 Vacancies
5.07 Compensation
5.08 President
5.09 Vice President
5.10 Secretary
5.11 Assistant Secretary
5.12 Treasurer
5.13 Assistant Treasurer
5.14 Filling of Offices
VI. INDEMNIFICATION
6.01 Policy of Indemnification and Advancement
of Expenses
6.02 Definitions
6.03 Non-Exclusive; Continuation
6.04 Indemnification of Employees or Agents
6.05 Insurance or Other Arrangement
VII. CERTIFICATES AND SHAREHOLDERS
7.01 Certificates
7.02 Replacement of Lost or Destroyed Certificates
7.03 Transfer of Shares
7.04 Registered Shareholders
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7.05 Preemptive Rights
7.06 Restriction on Transfer of Shares
VIII. NOTICE
8.01 Method
8.02 Waiver
IX. GENERAL PROVISIONS
9.01 Distributions, Share Dividends and Reserves
9.02 Books and Records
9.03 Checks and Notes
9.04 Fiscal Year
9.05 Seal
9.06 Resignation
9.07 Amendment of Bylaws
9.08 Table of Contents; Headings
9.09 Construction
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BYLAWS
OF
F.G.G. INVESTMENTS, INC.
ARTICLE I
OFFICES
1.01 REGISTERED OFFICE AND AGENT. The registered office and
registered agent of the corporation shall be as designated with the Secretary of
State of the State of Delaware and the office of the Recorder of the County of
such county, as they may be changed from time to time.
1.02 OTHER OFFICES. The corporation may also have offices at such
other places both within and without the State of Delaware, as the board of
directors may from time to time determine, or as the business of the corporation
may require.
ARTICLE II
SHAREHOLDERS
2.01 PLACE AND MANNER OF MEETINGS. All meetings of the shareholders
shall be held at such time and place, within or without the State of Delaware,
as shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof. Shareholders may participate in such meetings 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 as provided herein shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
2.02 ANNUAL MEETING. An annual meeting of the shareholders,
commencing with the year following the adoption of these Bylaws, shall be held
on the first Tuesday during the month of April, if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 a.m., or at such
other date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which time the
shareholders shall elect a board of directors, and transact such other business
as may properly be brought before the meeting.
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2.03 VOTING LIST. At least ten days before each meeting of
shareholders a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, with the residence of each and the
number of voting shares held by each, shall be prepared by the officer or agent
having charge of the stock transfer books. Such list, for a period of ten days
prior to the meeting, shall be kept on file at a place within the city where the
meeting is to be held and shall be subject to the inspection by any shareholder
for any purpose germane to the meeting, at any time during usual business hours.
Such list shall also be produced and kept open at the time and place of the
meeting during the whole time thereof, and shall be subject to the inspection of
any shareholder who may be present.
2.04 SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, or by these Bylaws, may be called by the
president, the board of directors, or the holders of not less than one-tenth of
all the shares entitled to vote at the meetings. Business transacted at all
special meetings shall be confined to the objects stated in the notice of the
meeting.
2.05 NOTICE. Written or printed notice stating the place, day and
hour of the meeting and, in case of a special meeting, the purpose or purposes
for which, the meeting is called, shall be delivered not less than ten nor more
than sixty days before the date of the meeting either personally or by mail, by
or at the direction of the president, the secretary or the officer or person
calling the meeting, to each shareholder of record entitled to vote at the
meeting, provide that such notice may be waived as provided in Section 6.02 of
these Bylaws. If mailed, such notice shall be deemed to be delivered when
deposited in the mail addressed to the shareholder at his address as it appears
on the stock transfer books of the corporation. With postage thereon prepaid.
Any notice required to be given to any shareholder hereunder or under the
Certificate of Incorporation need not be given to the shareholder if (A) notice
of two consecutive annual meetings of the corporation and all notices of
meetings held during the period between those annual meetings, if any, or (B)
all (but in no event less than two) payments (if sent by first class mail) of
distributions or interest on securities during a twelve-month period have been
mailed to that person, addressed at his address as shown on the share transfer
records of the corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such person shall have the same force
and effect as if the notice had been duly given.
2.06 QUORUM. The holders of a majority of the shares issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy shall be requisite and shall constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise provided by
statute, _____ the Certificate of Incorporation or by these Bylaws. If a quorum
is
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not present or represented at a meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, until a quorum is present or
represented. At such adjourned meeting, at which a quorum is present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
2.07. MAJORITY VOTE; WITHDRAWAL OF QUORUM. When a quorum is present
at any meeting, the vote of the holders of a majority of the shares having
voting power, present in person or represented by proxy, shall decide any matter
brought before such meeting, unless the matter is one upon which, by express
provision of the statutes or of the Certificate of Incorporation, or of these
Bylaws, a different vote is required, in which case such express provision shall
govern and control the decision of such matter. The shareholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
2.08 METHOD OF VOTING. Each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders, except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Certificate of Incorporation. At
any meeting of the shareholders each shareholder having the right to vote may
vote either in person or by proxy executed in writing by the shareholder or by
his duly authorized attorney-in-fact, and being dated not more than eleven
months prior to said meeting, unless said proxy shall provide for a longer
period. A telegram, telex, cablegram, or similar transmission by the
shareholder, or a photographic, photostatic, facsimile, or similar reproduction
of a writing executed by the shareholder, shall be treated as an execution in
writing for purposes of the immediately preceding sentence. Each proxy shall be
filed with the secretary of the corporation prior to or at the time of the
meeting. Voting for directors shall be in accordance with Section 3.06 of these
Bylaws. Any vote may be taken VIVA VOCE or by show of hands unless someone
entitled to vote objects, in which case written ballots be used.
2.09 FIXING RECORD DATES FOR MATTERS OTHER THAN CONSENTS TO ACTION;
CLOSING TRANSFER BOOKS. The board of directors may fix in advance a record date
for the purpose of determining shareholders entitled to notice of or to vote at
a meeting of the shareholders, the record date to be not less than ten nor more
than sixty days prior to said meeting; or the board of directors may close the
stock transfer books for such purpose for a period of not less than ten nor more
than sixty days prior to such meeting. In the absence of any action by the board
of directors, the date upon which the notice of the meeting is mailed shall be
the record date.
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2.10 FIXING RECORD DATES FOR CONSENTS TO ACTION. Unless a record
date shall have previously been fixed or determined pursuant to Section 2.09
hereof, whenever action by shareholders is proposed to be taken by consent in
writing without a meeting of shareholders, if provided for by the Certificate of
Incorporation, the board of directors may fix a record date for purposes of
determining shareholders entitled to consent to that action, which record date
shall not precede, and shall not be more than ten days after, the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of directors and the
prior action of the board of directors is not required by the statutes, the
record date for determining shareholders entitled to consent to Acton in writing
without a meeting shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office, its principal place of
business, or an officer of the corporation having custody of the books in which
proceedings of meetings of shareholders are recorded. Delivery shall be by hand
or by certified or registered mail, return receipt requested. Delivery to the
corporation's principal place of business shall be addressed tot he president or
the principal executive officer of the corporation. If no record date has been
fixed by the board of directors and prior action of the board of directors is
required by statute, the record date for determine shareholders entitled to
consent to action in writing without a meeting shall be at the close of business
on the date on which the board of directors adopts a resolution taking such
prior action.
2.11 ACTION WITHOUT MEETING. Any action required by statute to be
taken at a meeting of the shareholders, or any action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof, and
such consent shall have the same force and effect as a unanimous vote of the
shareholders. If the Certificate of Incorporation of the corporation so
provides, any action required by statute to be taken at any annual or special
meeting of shareholders, or any action which may be taken at any annual or
special meeting of shareholders, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing setting forth
the action so taken, shall be signed by the holder or holders of shares having
note less than the minimum number of votes that would be necessary to take such
action at a meeting at which the holders of all shares entitled to vote on the
action were present and votes. Every written consent pursuant to this Section
shall be signed dated and delivered in the manner required by, and shall be
effective at the time and remain effective for the period specified by the
statues. A telegram, telex, cablegram, or similar transmission by a shareholder,
or a photographic, photostatic, facsimile, or similar reproduction of a writing
signed by a shareholder, shall be regarded as signed by the shareholder for
purposes of this Section. Prompt notice of the taking of any action by
shareholders without a
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meeting by less than unanimous written consent shall be given to those
shareholders who did not consent in writing to the action.
ARTICLE III
DIRECTORS
3.01 MANAGEMENT. The powers of the corporation shall be exercised
by or under authority of, and the business and affairs of the corporation shall
be managed by the board of directors who may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the shareholders.
3.02 NUMBER; QUALIFICATION; ELECTION; TERM. The number of directors
which shall constitute the whole board shall be not less than one (1) nor more
than seven (7). The number of directors which shall constitute the initial board
of directors shall be the number fixed by the Certificate of Incorporation.
Thereafter, within the limits above specified, the number of directors shall be
determined by resolution of the board of directors.
3.03 CHANGE IN NUMBER. The number of directors provided for in
Section 3.02 may be increased or decreased from time to time by amendment to
these Bylaws, but no decrease shall have the effect of shortening the term of
any incumbent director. Any directorship to be filled by reason of an increase
in the number of directors shall be filled (A) by election at an annual meeting
or at a special meeting of shareholders called for that purpose, or (B) by the
board of directors for a term of office continuing only until the next election
of one or more directors by the shareholders; provided, however, that the board
of directors may not fill more than two such directorships during the period
between any two successive annual meetings of shareholders.
3.04 REMOVAL. Any director may be removed either for or without
cause at any special or annual meeting of shareholders, by the affirmative vote
of a majority in number of shares of the shareholders present in person or by
proxy at such meeting and entitled to vote for the election of such director if
notice of intention to act upon such matter shall have been given in the notice
calling such meeting.
3.05 VACANCIES. Any vacancy occurring in the board of directors (by
death, resignation, retirement, removal or otherwise) may be filled (A) by
election at an annual or special meeting of shareholders called for that
purpose, or (B) by an affirmative vote of a majority of the remaining directors,
though less than a quorum of the board of directors. A director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office.
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3.06 ELECTION OF DIRECTORS. Unless otherwise provided by the
Certificate of Incorporation, directors shall be elected by plurality of the
votes cast by the holders of shares entitled to vote in the election of
directors at a meeting of shareholders at which a quorum is present. Cumulative
voting shall not be permitted.
3.07 PLACE AND MANNER OF MEETINGS. Meetings of the board of
directors, regular or special, may be held either within or without the State of
Delaware. Members of the board of directors may participate in such meetings 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 as provided herein shall constitute present in person
at such meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
3.08 FIRST MEETING. The first meeting of each newly elected board s
hall be held without further notice immediately following the annual meeting of
shareholders, and at the same place, unless by unanimous consent of the
directors then elected and serving such time or place shall be changed.
3.09 REGULAR MEETINGS. Regular meetings of the board of directors
may be held without notice at such time and place as shall from time to time be
determined by the board.
3.10 SPECIAL MEETINGS. Special meetings of the board of directors
may be called by the president on three days' notice to each director, either
personally or by mail or by telegram. Special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors. Except as otherwise expressly provided by statute, or by the
Certificate of Incorporation, of by these Bylaws, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in a
notice or waiver of notice.
3.11 ACTION WITHOUT MEETING. Any action required by statute to be
taken at a meeting of the board of directors, or any action which may be taken
at a meeting of the board of directors, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
the members of the board of directors. Such consent shall have the same force
and effect as an unanimous vote at a meeting.
3.12 QUORUM; MAJORITY VOTE. At all meetings of the board of
directors a majority of the number of directors fixed by these Bylaws shall
constitute a quorum for the transaction of business unless a greater number is
required by
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law or by the Certificate of Incorporation. The act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors unless the act of a greater number is required by
statute, by the certificate of Incorporation or by these Bylaws. If a quorum
shall not be present at any meeting of the board of directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
3.13 COMPENSATION. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of the executive committee
or of special or standing committees may, by resolution to he board of
directors, be allowed like compensation for attending committee meetings.
3.14 PROCEDURE. The board of directors shall keep regular minutes
of its proceedings. The minutes shall be placed in the minute book of the
corporation.
3.15 INTERESTED DIRECTORS, OFFICERS AND SHAREHOLDERS.
(A) VALIDITY. Any contract or other transaction between the
corporation and any of its directors, officers or shareholders (or any
corporation or firm in which any of them are directly or indirectly interested)
shall be valid for all purposes notwithstanding the presence of such director,
officer or shareholder at the meeting authorizing such contract or transaction
or his participation in such meeting or authorization.
(B) DISCLOSURE, APPROVAL. The foregoing shall, however, apply only
if the interest of each such director, officer o shareholder is known or
disclosed:
1. To the board of directors and it nevertheless
authorizes or ratifies the contract or transaction by a majority of the
directors present, each such interested director to be counted in determining
whether a quorum is present but not in calculating the majority necessary to
carry the vote; or
2. To the shareholders and they nevertheless authorize
or ratify the contract or transaction by a majority of the shares present, each
such interested person to be counted for quorum and voting purposes.
(C) NON-EXCLUSIVE. This provision shall not be construed __
invalidate any contract or transaction which would be valid in the absence of
this provision.
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ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
4.01 DESIGNATION. The board of directors may, by resolution adopted
by a majority of the whole board, designate from its members one or more
committees, each of which shall be comprised of one or more of its members, and
may designate one or more of its members as alternate members of any committee,
who may, subject to any limitations imposed by the board of directors, replaced
absent or disqualified members at any meeting of that committee.
4.02 AUTHORITY. Any such committee, to the extent provided in such
resolution or the Certificate of Incorporation, shall have and may exercise all
of the authority of the board of directors in the management of the business and
affairs of the corporation, subject to the limitations set forth in the Delaware
General Corporation Law, and shall have power to authorize the seal of the
corporation to be affixed to all papers which may require it.
4.03 PROCEDURE. Each such committee shall keep regular minutes of
its proceedings and report the same to the board of directors when required.
4.04 REMOVAL. Any member of any such committee may be removed by
the board of directors by the affirmative vote of a majority of the whole board,
whenever in its judgment the best interests of the corporation will be served
thereby.
4.05 RESPONSIBILITY. The designation of on or more committees and
the delegation of authority to any such committee shall no operate to relieve
the board of directors, or any member thereof, of any responsibility imposed
upon it or him by law.
ARTICLE V
OFFICERS
5.01 NUMBER. The officers of the corporation shall consist of a
president and a secretary, each of whom shall be elected by the board of
directors. Such offices may be held by the same person.
5.02 ELECTION. The board of directors, at its first meeting after
each annual meeting of shareholders, shall elect officers for the ensuing year
or until their successors are elected, none of whom need be a member of the
board, a shareholder or a resident of Delaware.
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5.03 OTHER OFFICERS. The board of directors may elect or appoint
such other officers and agents as it shall deem necessary, who shall be
appointed for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the board. Any two or more offices
may be held by the same person.
5.04 TERM. Each officers of the corporation shall hold office until
his successor is chosen and qualified in his stead or until his death or until
his resignation or removal from office.
5.05 REMOVAL. Any officer or agent or member of a committee 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 corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent or
member of a committee shall not of itself create contract rights.
5.06 VACANCIES. Any vacancy in any office because of death,
resignation, removal or otherwise, may be filled by the board of directors for
the unexpired portion of the term.
5.07 COMPENSATION. The compensation of all officers and agents
shall be fixed by the board of directors.
5.08 PRESIDENT. The president shall be the chief executive officer
of the corporation, and subject to the control of the board of directors, shall
in general supervise and control all of the business and affairs of the
corporation and shall see that all orders and resolutions of the board are
carried into effect. He shall, when present, preside at all meetings of the
shareholders and of the board of directors. The president may execute, with the
secretary or any other proper officer of the corporation thereunto authorized by
the board of directors, certificates for shares of the corporation, any deeds,
mortgages, bonds, contracts or other instruments which the board of directors
has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
Bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed, and in general shall perform all
duties incident to the office of president, and such other duties as maybe
prescribed by the board of directors from time to time.
5.09 VICE-PRESIDENT. The vice-presidents in the order of their
seniority, unless otherwise determined by the board of directors shall, in the
absence or disability of the president perform the duties and have the authority
and exercise the powers of the president. They shall perform such other duties
and have
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such other authority and powers as the board of directors may from time to time
prescribe or as the president may from time to time delegate.
5.10 SECRETARY. The secretary shall attend all sessions of the
board of directors and all meetings of the shareholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the executive committee when required, or any other
committee, if requested. He shall give, or cause to be given, notice of the
meetings of the board of directors and shareholders where such notices are
required by these Bylaws to be given. He shall keep in safe custody the seal of
the corporation, and when authorized by the board or the executive committee,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the treasurer or an assistant
secretary.
The secretary shall be under the supervision of the president. He shall
perform such other duties and have such other authority and powers as the board
of directors may from time to time prescribe or as the president may from time
to time delegate.
5.11 ASSISTANT SECRETARY. The assistant secretaries in the order of
their seniority unless otherwise determined by the board of directors, shall, in
the absence or disability of the secretary, perform the duties and have the
authority and exercise the powers of the secretary. They shall perform such
other duties and have such other powers as the board of directors may from time
to time prescribe, or as the president may from time to time delegate.
5.12 TREASURER.
(A) The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements of the corporation, and shall deposit all moneys and other
valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the board of directors.
(B) He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and directors, at the regular
meetings of the board, or whenever they may require it, an account of all his
transactions as treasurer and of the financial condition of the corporation.
(C) If required by the board of directors, he shall give the
corporation a bond in such form, in such sum and with such surety or sureties as
shall be satisfactory to the board for the faithful performance of the duties of
his office and for the restoration to the corporation, in case of his death,
resignation,
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retirement or removal from office, of all books, reports, vouchers, money, or
other property of whatever kind in the his possession or under his control
belonging to the corporation.
(D) He shall perform such other duties and have such other
authority and powers as the board of directors may from time to time prescribe,
or as the president may from time to time delegate.
5.13 ASSISTANT TREASURER. The assistant treasurer in the order of
their seniority, unless otherwise determined by the board of directors, shall,
in the absence or disability of the treasurer, perform the duties and have the
authority and exercise the powers of the treasurer. They shall perform such
other duties and have such other powers a the board of directors may from time
to time prescribe or other president may from time to time delegate.
5.14. FILLING OF OFFICES. The board of directors of the corporation
shall not be required to fill the offices of vice-president, assistant
secretary, and assistant treasurer, or to name an executive committee or any
other committee until, in the opinion of the board, there is a need for such
offices, committees, or any of them, to be filled.
ARTICLE VI
INDEMNIFICATION
6.01 POLICY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. To the
full ex tent permitted by Delaware law, the corporation shall indemnify any
director or officer of the corporation against judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable expenses (including
court costs and attorneys' fees) actually incurred by any such person who was,
is or is threatened to be made a named defendant or respondent in a proceeding
because the person is or was a director or officer of the corporation and shall
advance to such person such reasonable expenses as are incurred by such person
in connection therewith.
6.02 DEFINITIONS. For purposes of this Article VI:
(i) "Director" means any person who is or was a director
of the corporation and any person who, while a director of the corporation, is
or was serving at the request of the corporation as a director, officer,
partner, venture, proprietor, trustee, employee, agent, or similar functionary
of the corporation or of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise.
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(ii) "Officer" means any person who is or was an officer
of the corporation and any person who, while an officer of the corporation, is
or was serving at the request of the corporation as a director, officer,
partner, venture, proprietor, trustee, employee, agent or similar functionary of
the corporation or of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise.
(iii) "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that cold lead to such an action,
suit, or proceeding.
6.03 NON-EXCLUSIVE; CONTINUATION. The indemnification provided by
this Article VI shall not be deemed exclusive of any other rights to which the
person claiming indemnification may be entitled under any agreement, any vote of
shareholders or disinterested directors of the corporation or otherwise both as
disinterested directors of the corporation or otherwise both as to any action in
his or her official capacity and as to any action in another capacity while
holding such office, and shall continue as to a person who shall have ceased to
be a director, officer or employee of the corporation engaged in any other
enterprise at the request of the corporation and shall inure to the benefit of
the heirs, executors and administrators of such person.
6.04 INDEMNIFICATION OF EMPLOYEES OR AGENTS. The corporation may
indemnify and advance expenses to an employee or agent who is not a director or
officer to such further extent, consistent with law and upon the satisfaction of
any requirements imposed by such law, as may be provided by general or specific
action of the board of directors, or contract or as permitted or required by
common law.
6.05 INSURANCE OR OTHER ARRANGEMENT. The corporation shall have the
power to purchase and maintain insurance or another arrangement on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or who is or was serving at the request of the corporation as a director,
officer, employee or agent or any other capacity in another corporation, or a
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in such capacity,
arising out of such person's acting as such, whether or not such person is
indemnified against such liability by the provisions of this Article VI.
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ARTICLE VII
CERTIFICATES AND SHAREHOLDERS
7.01 CERTIFICATES. Certificates in the form determined by the board
of directors shall be delivered representing all shares in which shareholders
are entitled. Such certificates shall be consecutively numbered, and shall be
entered in the books of the corporation as they are issued. Each certificate
shall state on the face thereof the holder's name, the number and class of
shares, the par value of shares or a statement that such shares are without par
value, and such other matters as may be required by the laws of the State of
Delaware. They shall be signed by the president or a vice-president and the
secretary or assistant secretary, and may be sealed with the seal of the
corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent or registered by a registrar other than the corporation or an
employee of the corporation, the signature of such officer may be a facsimile.
In the event any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar be fore such certificate is issued,
it may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
7.02 REPLACEMENT OF LOST OR DESTROYED CERTIFICATES. The board of
directors may direct a new certificate representing shares to be issued in place
of any certificate theretofore issued by the corporation alleged to have been
lost or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate to be lost or destroyed. When authorizing such issue of
a new certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions a it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
7.03 TRANSFER OF SHARES. Shares of stock shall be transferable only
on the books of the corporation by the holder thereof in person or by his duly
authorized attorney, Upon surrender, to the corporation or its transfer agent,
of a certificate re presenting shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the corporation or
its transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
7.04 REGISTERED SHAREHOLDERS. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof, and accordingly shall not be required to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it has express or other notice thereof, except as
otherwise provided by law.
7.05 PREEMPTIVE RIGHTS. No shareholder or any other person shall
have any preemptive right whatsoever.
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7.06 RESTRICTION ON TRANSFER OF SHARES. No shareholder including
the heirs, assigns, executors, or administrators of a deceased shareholder shall
voluntarily or involuntarily sell or assign shares of the corporation to any
person or persons, firms, or other corporations not a shareholder, or pledge the
same or any part thereof by endorsement resulting i delivery to a transferee who
is not a shareholder, without first offering such stock for sale to the
corporation and the other shareholders in the following manner.
(A) Such shareholder shall give written notice by registered or
certified mail to the secretary of the corporation of his intention to sell such
shares. Said notice shall specify his intention to sell such shares. Said notice
shall specify the number of shares to be sold, the price per share, and the
terms upon which the sale is to be made. The corporation shall have thirty (30)
day from the receipt of such notice within which to exercise its option to
purchase all or any full number of the shares so offered. Such purchase may be
authorized by the board of directors without any action by the shareholders of
the corporation.
(B) In the event that the corporation shall fail to purchase all
of such shares within the said thirty (30) day period, the secretary of the
corporation shall within ten (10) days thereafter, give written notice to each
of the shareholders of record, stating the number of shares offered for sale but
not purchased by the corporation, and the price per share, and the terms upon
which the sale is being made. Such notice shall be sent by mail addressed to
each shareholder at his last address as it appears on the books of the
corporation. Within thirty (30) day after the mailing of said notices any
shareholder desiring to purchase part or all of such shares shall deliver by
mail or otherwise to the secretary of the corporation a written offer for the
number of shares desired by him, accompanied by the purchase price therefor with
authorization to pay such purchase price against delivery of such shares.
(C) If the shareholders offer to purchase more than the total
number of shares available for purchase by them, then the shareholders offering
to purchase shall be entitled to purchase any proportion of said shares as the
number of shares of the corporation which he holds bears to the total number of
shares held by all shareholders offering to purchase. In the event that the
proportion of said shares to which any shareholder should be entitled to
purchase is more than the number of shares he desires to purchase, each
remaining shareholder desiring to purchase additional shares shall be entitled
to purchase such proportion of the overplus as the number of shares which he
holds bears to the total number of shares held by all shareholders desiring to
participate.
(D) If none or only a part of the shares offered for sale is
purchased by the corporation or shareholders, or both, then its shareholder who
offered the
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same for sale shall have thereafter the right, at any time during the period of
six (6) months after the expiration of the thirty (30) day period referred to in
paragraph (B) above, to sell said shares not so purchased to such person or
persons as he desire; PROVIDED, HOWEVER, that he shall not sell such shares at a
lower price or on terms more favorable to the purchaser than those specified in
the written notice he gave to the corporation nor shall he sell such shares
after the expiration of the six month period without first giving written notice
as hereinabove required.
(E) No shares of stock shall be sold or transferred on the boos of
the corporation until these provisions have been complied with, but the board of
directors may, in any particular instance, waive the requirements.
ARTICLE VIII
NOTICE
8.01 METHOD. Whenever by statute or the Certificate of
Incorporation or these Bylaws, notice is required to be given to any shareholder
or director, and no provision is made as to how the notice shall be given, it
shall not be construed to mean personal notice, but any such notice may be given
in writing, postage prepaid, addressed to the director or shareholder at the
address appearing on the books of the corporation, or by any other method
permitted by law. Any notice required or permitted to be given by mail shall be
deemed given at the time when the same is thus deposited in the United States
mails. Notice to directors may also be given by telegram, with such notice being
deemed to have been given when the telegram is delivered to the telegraph
company.
8.02 WAIVER. Whenever, by statute or the Certificate of
Incorporation or these Bylaws, notice is required to be given to any shareholder
or director, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated in such notice,
shall be equivalent to the giving of such notice. Attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends for the express purpose of objecting to the transaction of any
business on the rounds that the meeting is not lawfully called or convened.
ARTICLE IX
GENERAL PROVISIONS
9.01 DISTRIBUTION, SHARE DIVIDENDS AND RESERVES.
(A) DECLARATION AND PAYMENT. Subject to statute and the
Certificate of Incorporation, distributions and share dividends may be
authorized
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by the board of directors at any regular or special meeting and made by the
corporation. Distributions may be paid in cash or in property of the
corporation, and share dividends may be paid in authorized but unissued shares
or in treasury shares of the corporation. The authorization and payment of
distributions and share dividends shall be at the discretion of the board of
directors.
(B) RECORD DATE. The board of directors may fix in
advance a record date for the purpose of determining shareholders entitled to
receive any distribution or share dividend by the corporation, such record date
to be not more than sixty days prior to the payment of such distribution or
share dividend. In the absence of any action by the board of directors, the date
upon which the board of directors adopts the resolution authorizing the
distribution or share dividend shall be the record date.
(C) RESERVES. By resolution the board of directors may
create such reserve or reserves out of the surplus of the corporation or
designate or allocate any part or all of the surplus of the corporation in any
manner for any proper purpose or purposes, and may increase, decrease or abolish
any such reserve, designation or allocation in the same manner.
9.02 BOOKS AND RECORDS. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its shareholders, its board of directors, and each committee of its board of
directors, and shall 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 issued by the corporation and a record of each
transfer of those shares that have been presented to the corporation for
registration of transfer. Such records shall contain the names and addresses of
all past and current shareholders and the number and class of the shares issued
by the corporation held by each of them.
9.03. CHECKS AND NOTES. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers or such other person
or persons as the board of directors may from time to time designate.
9.04 FISCAL YEAR. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
9.05 SEAL. The corporate seal shall have inscribed thereon the name
of the corporation and shall be in such form as the board of directors may
prescribe. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced otherwise.
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9.06 RESIGNATION. Any director, officer or agent may resign by
giving written notice to the president or the secretary. The resignation shall
take effect at the time specified therein. Unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
9.07 AMENDMENT OF BYLAWS. These Bylaws may be repealed, altered or
amended at any meeting of the board of directors at which a quorum is present,
by the affirmative vote of a majority of the directors present at such meeting,
provided notice of the proposed repeal, alteration or amendment is contained in
the notice of such meeting, unless (A) the power to repeal, alter or amend the
Bylaws is exclusively reserved to the shareholders in whole or part by the
Certificate of Incorporation or by statute, or (B) the shareholders in amending,
repealing or adopting a particular bylaw expressly provide that the board of
directors may not amend or repeal that by law.
9.08 TABLE OF CONTENTS; HEADINGS. The table of contents and
headings used in these Bylaws have been inserted for convenience only and do not
constitute matter to be construed in interpretation.
9.09 CONSTRUCTION. Whenever the context so requires, the masculine
shall include the feminine and neuter, and the singular shall include the
plural, and conversely. If any portion of these Bylaws shall be invalid or
inoperative, then, so far as is reasonable and possible:
(A) The remainder of these Bylaws shall be considered
valid and operative; and
(B) Effect shall be given to the intent manifested by the
portion held invalid or inoperative.
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