EXHIBIT 3.45
FORM OF BYLAWS
OF
BRINDLEY & BRINDLEY REALTY & DEVELOPMENT, INC.
COASTAL RESORTS MANAGEMENT, INC.
FIRST RESORT SOFTWARE, INC.
MAUI CONDOMINIUM AND HOME REALTY, INC.
TELLURIDE RESORT ACCOMMODATIONS, INC.
THE MANAGEMENT COMPANY
THE MAURY PEOPLE, INC.
TRUPP-HODNETT ENTERPRISES, INC.
ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of the
Corporation shall be in as set forth in the Corporation's charter (the "Articles
of Incorporation"), or as otherwise established by the Board of Directors of the
Corporation (the "Board of Directors") by resolution.
Section 1.02. Additional Offices. The Corporation may also have offices
at such other places, both within and outside the state of its incorporation, as
the Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Time and Place. All meetings of stockholders for the
election of Directors shall be held at such time and place, either within or
outside the Corporation's state of incorporation, as shall be designated from
time to time by the Board of Directors and stated in the notice of the meeting
or in a duly executed waiver of notice of the meeting. Meetings of stockholders
for any other purpose may be held at such time and as shall be stated in the
notice of the meeting or in a duly executed waiver of notice of the meeting.
Section 2.02. Annual Meeting. Annual meetings of stockholders shall be
held for the purpose of electing a Board of Directors and transacting such other
business as may properly be brought before the meeting.
Section 2.03. Notice of Annual Meeting. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10)
(unless a longer period is required by law) nor more than sixty (60) days prior
to the meeting.
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Section 2.04. Special Meeting. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the Chairman of the Board, if any,
or, if the Chairman is not present (or, if there is none), by the President and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of the
stockholders owning at least ten percent (10%) of the shares of capital stock of
the Corporation issued and outstanding and entitled to vote at such meeting.
Such request shall state the purpose or purposes of the proposed meeting. The
person calling such meeting shall cause notice of the meeting to be given in
accordance with the provisions of Section 2.05 of this Article II and of Article
V.
Section 2.05. Notice of Special Meeting. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be delivered either
personally or mailed to his or her last address to each stockholder not less
than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days prior to the meeting.
Section 2.06. List of Stockholders. The officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, at
a place within the city where the meeting is to be held. Such place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the time and place of the meeting
during the whole time of the meeting and may be inspected by any stockholder who
is present.
Section 2.07. Presiding Officer. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or if the Chairman is not
present (or if there is none), by the President, or, if the President is not
present, by a Vice President, or, if a Vice President is not present, by such
person who may have been chosen by the Board of Directors, or, if none of such
persons is present, by a Chairman to be chosen by the stockholders owning a
majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy. The Secretary of the Corporation, or, if the Secretary is
not present, an Assistant Secretary, or, if an Assistant Secretary is not
present, such person as may be chosen by the Board of Directors, shall act as
secretary of meetings of stockholders, or, if none of such persons is present,
the stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting and who
are present in person or represented by proxy shall choose any person present to
act as secretary of the meeting.
Section 2.08. Quorum and Adjournments. The holders of a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at stockholders meetings, present in person or represented by proxy,
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the stockholders, except as otherwise provided by
statute or by the Articles of Incorporation. The stockholders present or in
person or
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represented by proxy at a duly organized meeting may continue to do business
until final adjournment of such meeting whether on the same day or on a later
day, notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. If a meeting cannot be organized because a quorum has not attended, or
even if a quorum shall be present or represented at any meeting of the
stockholders, the stockholders entitled to vote at such meeting present in
person or represented by proxy may adjourn the meeting from time to time;
provided, however, that if the holders of any class of stock of the Corporation
are entitled to vote separately as a class upon any matter at such meeting, any
adjournment of the meeting in respect of action of such class upon such matter
shall be determined by the holders of a majority of the shares of such class
present in person or represented by proxy and entitled to vote at such meeting,
until a quorum shall be present or represented. Notice of the adjourned meeting
need not be given if the time and place of the adjourned meeting are announced
at the meeting at which the adjournment is taken. At any adjourned meeting at
which a quorum is present in person or represented by proxy of any class of
stock entitled to vote separately as a class, as the case may be, any business
may be transacted which might have been transacted at the meeting as originally
called. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at such meeting.
Section 2.09. Voting.
(a) At any meeting of stockholders, every stockholder
having the right to vote shall be entitled to vote in person or by proxy, but no
such proxy shall be voted or acted upon after eleven (11) months from its date,
unless the proxy provides for a different period. Except as otherwise provided
by law or the Articles of Incorporation, each stockholder of record shall be
entitled to one (1) vote for each share of capital stock registered in his or
her name on the books of the Corporation.
(b) At a meeting at which a quorum is present, all
elections of Directors shall be determined by a plurality vote, and, except as
otherwise provided by law or the Articles of Incorporation, all other matters
shall be determined by a vote of a majority of the shares present in person or
represented by proxy and entitled to vote on such other matters.
Section 2.10. Inspectors. When required by law or directed by the
presiding officer or upon the demand of any stockholder entitled to vote, but
not otherwise, the polls shall be opened and closed, the proxies and ballots
shall be received and taken in charge, and all questions touching the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes shall be decided at any meeting of the stockholders by two or more
inspectors who may be appointed by the Board of Directors before the meeting, or
if not so appointed, shall be appointed by the presiding officer at the meeting.
If any person so appointed fails to appear or act, the vacancy may be filled by
appointment in like manner.
Section 2.11. Consent. Unless otherwise provided in the Articles of
Incorporation, any action required or permitted by law or the Articles of
Incorporation to be taken at any meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a written
consent, setting forth the action so taken, shall be signed by all of the
shareholders
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entitled to vote on such action. Such written consent shall be filed with the
minutes of meetings of stockholders.
ARTICLE III
DIRECTORS
Section 3.01. Number and Tenure. There shall be such number of
Directors, no fewer than one (1) nor greater than six (6), as shall from time to
time be fixed by the Board of Directors at the annual meeting or at any special
meeting called for such purpose. The Directors shall be elected at the annual
meeting of the stockholders, except for initial Directors named in the Articles
of Incorporation or elected by the incorporator, and except as provided in
Section 3.02 of this Article, and each Director elected shall hold office until
his successor is elected and shall qualify or until their earlier resignation or
removal. Directors need not be stockholders.
Section 3.02. Vacancies. If any vacancies occur on the Board of
Directors, or if any new Directorships are created, they shall be filled by a
majority of the Directors then in office, though less than a quorum, by the
affirmative vote of a majority of the shareholders at special meeting called for
that purpose, or by a sole remaining Director. Each Director so chosen shall
hold office until the next annual election of Directors and until his or her
successor is duly elected and shall quality. If there are no Directors in
office, any officer or stockholder may call a special meeting of stockholders in
accordance with the provisions of the Articles of Incorporation or these Bylaws,
at which meeting such vacancies shall be filled.
Section 3.03. Resignation. Any Director may resign at any time by
giving written notice to the Chairman of the Board, the President or the
Secretary of the Corporation, or, in the absence of all of the foregoing, by
notice to any other Director or officer of the Corporation. Unless otherwise
specified in such written notice, a resignation shall take effect upon delivery
to the designated Director or officer. It shall not be necessary for a
resignation to be accepted before it becomes effective.
Section 3.04. Place of Meetings. The Board of Directors may hold
meetings, both regular and special, either within or outside the Corporation's
state of incorporation.
Section 3.05. Annual Meeting. Unless otherwise agreed by the newly
elected Directors, the annual meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of stockholders, and no
notice of such meeting to either incumbent or newly elected Directors shall be
necessary.
Section 3.06. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice, at such time and place as may from time to
time be determined by the Board of Directors. A copy of every resolution fixing
or changing the time or place of regular meetings shall be mailed to every
Director at least five days before the first meeting held pursuant thereto.
Section 3.07. Special Meetings. Special Meetings of the Board of
Directors may be called by the Chairman of the Board or the President an at
least (1) day's actual notice to each Director,
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if such Special Meeting is to be conducted by means of conference telephone or
similar communications equipment in accordance with Section 3.11, and otherwise,
upon two (2) days' actual notice if such notice is delivered personally or sent
by telegram Special Meetings shall be called by the Chairman of the Board or the
President in like manner and on like notice on the written request of one-half
or more of the Directors then in office. The purpose of a Special Meeting of the
Board of Directors need not be stated in the notice of such meeting. Any and all
business other than an amendment of these Bylaws may be transacted at any
special meeting, and an amendment of these Bylaws may be acted upon if the
notice of the meeting shall have stated that the amendment of these Bylaws is
one of the purposes of the meeting. At any meeting at which every Director shall
be present, even though without any notice, any business may be transacted,
including the amendment of these Bylaws.
Section 3.08. Quorum and Adjournments. Unless otherwise provided by the
Articles of Incorporation, at all meetings of the Board of Directors, a majority
of the total number of Directors shall constitute a quorum for the transaction
of business; provided, however, that when the Board of Directors consists of one
(1) Director, then one (1) Director shall constitute a quorum. If a quorum is
not present at any meeting of the Board of Directors, the Directors present may
adjourn the meeting, from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 3.09. Presiding Officer. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board of Directors, if any, or if
the Chairman is not present (or if there is none), by the President, or, if the
President is not present, by such person as the Board of Directors may appoint
for the purpose of presiding at the meeting from which the President is absent.
Section 3.10. Action by Consent. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee. Such consent shall have the same force and effect as the unanimous
vote of the Board of Directors, except as provided in Section 4.01.
Section 3.11. Telephone Meetings. Members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting
of the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 3.12. Compensation. The Board of Directors, by the affirmative
vote of a majority of the Directors then in office and irrespective of the
personal interest of any Director, shall have authority to establish reasonable
compensation for Directors for their services as such and may, in addition,
authorize reimbursement of any reasonable expenses incurred by Directors in
connection with their duties.
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ARTICLE IV
COMMITTEES
Section 4.01. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
(1) or more committees, each committee to consist of one (1) or more Directors
of the Corporation. Except as provided by law, the Board of Directors may
designate one (1) or more persons who are not Directors as additional members of
any committee, but such persons shall be nonvoting members of such committee.
The Board of Directors may designate one (1) or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members of the committee present at any meeting and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers that may
require it; but no such committee shall have power or authority to amend the
Articles of Incorporation, adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
elect or remove officers or Directors, or amend these Bylaws of the Corporation.
Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors.
Section 4.02. Minutes of Committee Meetings. Unless otherwise provided
in the resolution of the Board of Directors establishing such committee, each
committee shall keep minutes of action taken by it and file the same with the
Secretary of the Corporation.
Section 4.03. Quorum. A majority of the number of Directors
constituting any committee shall constitute a quorum for the transaction of
business, and the affirmative vote of such Directors present at the meeting
shall be required for any action of the committee; provided, however, that when
a committee of one (1) member is authorized under the provisions of Section 4.01
of this Article, such one (1) member shall constitute a quorum.
Section 4.04. Vacancies, Changes and Discharge. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of and to discharge any committee.
Section 4.05. Compensation. The Board of Directors, by the affirmative
vote of a majority of the Directors then in office and irrespective of the
personal interest of any Director, shall have authority to establish reasonable
compensation for committee members for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
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ARTICLE V
NOTICES
Section 5.01. Form and Delivery.
(a) Whenever, under the provisions of law, the Articles
of Incorporation or these Bylaws, notice is required to be given to any
stockholder, it shall not be construed to mean personal notice unless otherwise
specifically provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such stockholder, at his or her
address as it appears on the records of the Corporation. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail, with
postage prepaid.
(b) Whenever, under the provisions of law, the Articles
of Incorporation, or these Bylaws, notice is required to be given to any
Director, it shall not be construed to mean personal notice unless otherwise
specifically provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such Director at the usual place of
residence or business of such Director as in the discretion of the person giving
such notice will be likely to be received most expeditiously by such Director.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, with postage prepaid.
Section 5.02. Waiver. Whenever any notice is required to be given under
the provisions of law, the Articles of Incorporation or these Bylaws, a written
waiver of notice, signed by the person or persons entitled to said notice,
whether before or after the time for the meeting stated in such notice, shall be
deemed equivalent to such notice.
ARTICLE VI
OFFICERS
Section 6.01. Designations. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President and a Secretary. The
Board of Directors may also choose a Chairman of the Board, one (1) or more Vice
Presidents, a Treasurer, one (1) or more Assistant Secretaries and one (1) or
more Assistant Treasurers and other officers and agents as it shall deem
necessary or appropriate. Any officer of the Corporation shall have the
authority to affix the seal of the Corporation and to attest the affixing of the
seal by his or her signature. All officers and agents of the Corporation shall
exercise such powers and perform such duties as shall from time to time be
determined by the Board of Directors.
Section 6.02. Term of Office and Removal. The Board of Directors at its
annual meeting alter each annual meeting of stockholders or at a special meeting
called for that purpose shall choose officers and agents, if any, in accordance
with the provisions of Section 6.01. Each officer of the Corporation shall hold
office until his or her successor is elected and shall qualify. Any officer or
agent elected or appointed by the Board of Directors may be removed, with or
without cause, at any time by the affirmative vote of a majority of the
Directors then in office.
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Any vacancy occurring in any office of the Corporation may be filled for the
unexpired portion of the term by the Board of Directors.
Section 6.03. Compensation. The salaries of all officers and agents, if
any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that he or she is also a Director of the Corporation.
Section 6.04. Chairman of the Board and the President. The Chairman of
the Board shall be the chief executive officer of the Corporation. If there is
no Chairman of the Board, the President shall be the chief executive officer of
the Corporation. The duties of the Chairman of the Board, and of the President
at the direction of the Chairman of the Board, shall be the following:
(i) Subject to the direction of the Board of
Directors, to have general charge of the business, affairs and property
of the Corporation and general supervision over its other officers and
agents and, in general, to perform all duties incident to the office of
Chairman of the Board (or President, as the case may be) and to see
that all orders and resolutions of the Board of Directors are carried
into effect.
(ii) Unless otherwise prescribed by the Board of
Directors, to have full power and authority on behalf of the
Corporation to attend, act and vote at any meeting of security holders
of other Corporations in which the Corporation may hold securities. At
such meeting the Chairman of the Board (or the President, as the case
may be) shall possess and may exercise any and all rights and powers
incident to the ownership of such securities that the Corporation might
have possessed and exercised if it had been present. The Board of
Directors may from time to time confer like powers upon any other
person or persons.
(iii) To preside over meetings of the stockholders
and of the Board of Directors, to call special meetings of
stockholders, to be an ex-officio member of all committees of the Board
of Directors, and to have such other duties as may from time to time be
prescribed by the Board of Directors.
Section 6.05. The Vice President. The Vice President, if any (or in the
event there be more than one (1), the Vice Presidents in the order designated,
or in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the President and shall
generally assist the President and perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.06. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all votes and
the proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for any committees of the Board of Directors, if requested
by such committee. The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and special meetings of the Board of Directors,
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and shall perform such other duties as may from time to time be prescribed by
the Board of Directors or the President, under whose supervision he or she shall
act. The Secretary shall have custody of the seal of the Corporation, and the
Secretary, or any Assistant Secretary, shall have authority to affix the same to
any instrument requiring it, and, when so affixed, the seal may be attested by
the signature of the Secretary or any such Assistant Secretary.
Section 6.07. The Assistant Secretary. The Assistant Secretary, if any
(or in the event there be more than one (1), the Assistant Secretaries in the
order designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.08. The Treasurer. The Treasurer, if any, shall have the
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may from time to time be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at regular meetings of the board, or
whenever they may require it, an account of all of his or her transactions as
Treasurer and of the financial condition of the Corporation.
Section 6.09. The Assistant Treasurer. The Assistant Treasurer, if any,
(or in the event there be more than one (1), the Assistant Treasurers in the
order designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.10. Transfer of Authority. In case of the absence of any
officer or for any other reason that the Board of Directors deems sufficient,
the Board of Directors may transfer the powers or duties of that officer to any
other officer or to any Director or employee of the Corporation, provided a
majority of the full Board of Directors concurs.
Section 6.11. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as the Board shall require.
ARTICLE VII
STOCK CERTIFICATES
Section 7.01. Form and Signatures. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by or in the name of
the Corporation, by the Chairman of the
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Board, the President or a Vice President and the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Corporation,
certifying the number and class (and series, if any) of shares owned by him or
her, and bearing the seal of the Corporation. Such seal and any or all of the
signatures on the certificate may be a facsimile. In case 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 before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Section 7.02. Registration of Transfer. Upon surrender to the
Corporation or any transfer agent of the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation or its transfer
agent to issue a new certificate to the person entitled thereto, to cancel the
old certificate and to record the transaction upon its books.
Section 7.03. Registered Stockholders. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive right of a
person who is registered on its books as the owner of shares of its capital
stock to receive dividends or other distributions, to vote as such owner, and to
hold liable for calls and assessments a person who is registered on its books as
the owner of shares of its capital stock. The Corporation shall not be bound to
recognize any equitable, legal or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof except as otherwise provided by law.
Section 7.04. Issuance of Certificates. No certificate shall be issued
for any share until (i) consideration for such share in the form of cash,
services rendered, personal or real property, leases of real property or a
combination thereof in an amount not less than the par value or stated capital
of such share has been received by the Corporation and (ii) the Corporation has
received a binding obligation of the subscriber or purchaser to pay the balance
of the subscription or purchase price.
Section 7.05. Stolen or Destroyed Certificates. The Board of Directors
may direct a new certificate to be issued in place of any certificate previously
issued by the Corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof; require the owner of such lost, stolen or
destroyed certificate, or his or her legal representative, to advertise the same
in such manner as it shall require, and to give the Corporation a bond in such
sum, or other security in such form as it may direct, as indemnity against any
claim that may be made against the Corporation on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
Section 7.06. Dividends. Subject to the provisions of the Articles of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation, but only out of funds
available for the payment of dividends as provided by law.
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ARTICLE VIII
INDEMNIFICATION
Section 8.01. Directors, Officers, Employees or Agents.
(a) To the extent permitted by law, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was a
Director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself; create a
presumption that the person did not act in good faith and in a manner that he or
she reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(b) The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation or to
have improperly derived a personal benefit unless and only to the extent that
the court in which such action or suit was brought shall determine 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 such expenses which the court shall deem proper.
(c) To the extent that a Director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and (b)
of this Article VIII, or in defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection therewith.
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(d) Any indemnification under subsections (a) and (b) of
this Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in subsections (a) and (b) of this Article VIII. Such determination 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 action, suit or proceeding, or (2) if
a quorum is not obtainable, by a committee of two (2) or more independent
directors, or (3) if such a quorum or committee is not obtainable, or, even if
obtainable, a quorum of disinterested Directors so directs, by independent legal
counsel in a written opinion or (4) by the stockholders.
(e) Expenses incurred by an officer or Director in
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such Director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
(f) The indemnification and advancement of expenses
provided by these Bylaws shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
(g) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
(h) The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under this Article.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Fiscal Year. The fiscal year of the Corporation shall be
as determined from time to time by the Board of Directors.
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Section 9.02. Seal. The corporate seal if adopted by the Board of
Directors shall be in the form designated by the Board the Directors. The seal
or any facsimile thereof may be, but need not be, unless required by law,
impressed or affixed to any instrument executed by an officer of the
Corporation.
Section 9.03. Checks, Notes, Etc. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment of
money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the corporation and/or other persons as the
Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptance notes, obligations and
orders for the payment of money made payable to the Corporation may be endorsed
for deposit to the credit of the Corporation with a duly authorized depository
by the Treasurer and/or such other officers or persons as the Board of Directors
from time to time may designate.
Section 9.04. Loans. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized to do so, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company or
other institution or from any firm, corporation or individual, and for such
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, and any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
Section 9.05. Contracts. Except as otherwise provided in these Bylaws
or as otherwise directed by the Board of Directors, the President or any Vice
President shall be authorized to execute and deliver, in the name and on behalf
of the Corporation, all agreements, bonds, contracts, deeds, mortgages and other
instruments, either for the Corporation's own account or in a fiduciary or other
capacity, and the seal of the Corporation, if appropriate, shall be affixed
thereto by any of such officers or the Secretary or an Assistant Secretary. The
Board of Directors, the President or any Vice President designated by the Board
of Directors may authorize any other officer, employee or agent to execute and
deliver, in the name and on behalf of the Corporation, agreements, bonds,
contracts, deeds, mortgages and other instruments, either for the Corporation's
own account or in a fiduciary or other capacity and, if appropriate, to affix
the seal of the Corporation thereto. The grant of such authority by the Board or
any such officer may be general or confined to specific instances.
ARTICLE X
AMENDMENTS
Section 10.01. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors, to the
extent that such power is
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conferred upon the Board of Directors by the Articles of Incorporation, at any
regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of
such proposed alteration, amendment, repeal or adoption of new Bylaws be
contained in the notice of such special meeting.
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