EXHIBIT 3.8
BY-LAWS
OF
WASTE SERVICES OF FLORIDA, INC.
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of the Corporation
shall be maintained in the State of Delaware.
SECTION 1.2 PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the Corporation shall be maintained in Fort Lauderdale, Florida. The Corporation
may maintain offices at such other places as the Board of Directors may from
time to time determine or as may be necessary or convenient for the business of
the Corporation.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. An annual meeting of stockholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place (if any) within or without the State of Delaware, on
such date, and at such time as the Board of Directors shall fix each year, which
date shall be within thirteen (13) months of the last annual meeting of
stockholders or, if no such meeting has been held, the date of incorporation. In
lieu of holding an annual meeting of stockholders at a designated place, the
Board of Directors may, in its sole discretion, determine that any annual
meeting of stockholders may be held solely by means of remote communication.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of stockholders, for any
purpose or purposes prescribed in the notice of the meeting, unless otherwise
prescribed by law (meaning, here and hereinafter, as required from time to time
by the Delaware General Corporation Law or the Certificate of Incorporation of
the Corporation), may be called by the Board of Directors (or by a committee of
the Board of Directors that has been duly designated by the Board of Directors
and whose powers and authority, as expressly provided in a resolution of the
Board of Directors, include the power to call such meetings) or the chief
executive officer and shall be held at such place (if any) within or without the
State of Delaware, on such date, and at such time as they or the chief executive
officer shall fix. In lieu of holding a special meeting of stockholders at a
designated place, the Board of Directors may, in its sole discretion, determine
that any special meeting of stockholders may be held solely by means of remote
communication.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by law, shall be called by the Secretary upon the written
request of stockholders owning at least 75% of the number of shares of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. Unless otherwise
prescribed by law, special meetings called by request of stockholders shall be
held at the offices of the Corporation on such reasonable date and at such
reasonable time as the chief executive officer shall fix, which date shall be
not less than fifteen (15) nor more than ninety (90) days from the date of
receipt of the request.
SECTION 2.3 NOTICE OF MEETINGS. The Corporation shall give notice of any
annual or special meeting of stockholders. Notices of meetings of the
stockholders shall state the place, (if any), date, and hour of the meeting, and
the means of remote communication, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting. In
the case of a special meeting, the notice shall state the purpose or purposes
for which the meeting is called. No business other than that specified in the
notice shall be transacted at any special meeting. Unless otherwise provided by
law, notice shall be given to each stockholder entitled to vote at such meeting
not fewer than ten (10) days or more than sixty (60) days before the date of the
meeting.
SECTION 2.4 QUORUM. The holders of a majority of the shares issued and
outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall be requisite and shall constitute a quorum at all
meetings of the stockholders for the transaction of business, except as
otherwise provided by law or these By-Laws. Where a separate vote by a class or
series is required, a majority of the shares of such class or series present in
person or represented by proxy shall constitute a quorum entitled to take action
with respect to that vote on that matter.
If a quorum shall not be present or represented at any meeting of
stockholders, then the chair of the meeting or the holders of a majority of the
shares present in person or represented by proxy at the meeting and entitled to
vote, shall have the power to adjourn the meeting from time to time, without
notice (except as required by law or Section 2.3 of these By-Laws) until a
quorum shall again be present or represented by proxy.
SECTION 2.5 ADJOURNED MEETINGS. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place (if any), at another date and time. When a meeting is adjourned to another
time and place, if any, unless otherwise provided by these By-Laws, notice need
not be given of the adjourned meeting if the place (if any), date and time,
thereof and the means of remote communication, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such adjourned
meeting, are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the stockholders may transact any business that might have
been transacted at the original meeting. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of such meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting. If an adjournment
is for more than 30 days or, if after an adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
- 2 -
SECTION 2.6 STOCKHOLDERS' LIST. 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 for each class or series of stock
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder, shall be prepared by the Secretary. The list
shall be reasonably accessible and open to the examination of any stockholder or
such stockholder's proxy, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder or such stockholder's proxy who is present. The
list shall presumptively determine the identity of the stockholders entitled to
vote at the meeting and the number of shares held by each stockholder.
SECTION 2.7 CONDUCT OF BUSINESS. The person designated by the Board of
Directors or, in the absence of such a person, the chief executive officer of
the Corporation or, in such officer's absence, such person as may be chosen by
the holders of a majority of the shares entitled to vote who are present in
person or represented by proxy, shall call to order any meeting of stockholders
and shall preside over and act as chair of the meeting. In the absence of the
Secretary of the Corporation, the secretary of the meeting shall be such person
as the chair of the meeting appoints. The chair of any meeting of stockholders
shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of discussion
as shall seem to the chair of the meeting in order. The date and time of the
opening and closing of the polls for each matter upon which the stockholders
will vote at the meeting shall be announced at the meeting.
SECTION 2.8 CONDUCT OF MEETINGS. The Board of Directors of the Corporation
may adopt by resolution such rules and regulations for the conduct of any
meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with rules and regulations adopted by the Board of Directors, the
chair of the meeting of stockholders shall have the right and authority to
prescribe any rules, regulations or procedures and to do all such acts as, in
the judgment of the chair of the meeting, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether adopted by the
Board of Directors or prescribed by the chair of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation,
their duly authorized and constituted proxies or such other persons as the chair
of the meeting shall determine; (iv) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. Unless and to the extent
determined by the Board of Directors or the chair of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
SECTION 2.9 VOTING. When a quorum is present at any meeting of
stockholders, and subject to the provisions of law or these By-Laws in respect
of the vote that shall be required for a specified action, the vote of the
holders of a majority of the shares having voting power, present in person or
represented by proxy, shall decide any question brought before such
- 3 -
meeting, unless the question is one upon which, by express provision of law or
these By-Laws, a different vote is required, in which case, such express
provision shall govern and control the decision of such question. At all
meetings of stockholders for the election of directors a plurality of the votes
cast shall be sufficient to elect. Each stockholder shall have one vote for each
share of stock having voting power registered in the stockholder's name on the
books of the Corporation, except as otherwise provided in the Certificate of
Incorporation.
At any meeting of the stockholders, every stockholder entitled to vote may
vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting.
All voting, including on the election of directors, except as otherwise
required by law, may be by a voice vote; provided, however, that upon demand
therefore by a stockholder entitled to vote or the stockholder's proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballot, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
The Corporation may, and to the extent required by law, shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof, including each vote taken. The Corporation
may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the chair of the meeting may, and to the extent
required by law, shall, appoint one or more inspectors to act at the meeting.
Each inspector, before acting at the meeting, shall take and sign an oath to
faithfully execute the duties of inspector with strict impartiality and
according to the best of his or her ability. Every vote taken by ballot shall be
counted by an inspector or inspectors.
Voting at meetings of stockholders need not be by written ballot and,
unless otherwise required by law, need not be conducted by inspectors of
election, unless so determined by the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote thereon which are present in person or by proxy
at such meeting.
SECTION 2.10 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act by proxy, but
no such proxy shall be voted or acted upon after three (3) years from its date,
unless the proxy provides for a longer period.
A stockholder may execute a writing authorizing another person or persons
to act for such stockholder as proxy in writing by transmitting or authorizing a
transmission permitted by law, including a facsimile signature or an electronic
transmission; provided, that the transmission sets forth or is submitted with
information from which it can be determined that the transmission was authorized
by the stockholder. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used; provided, however, that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission.
- 4 -
A proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in accordance
with applicable law bearing a later date to the Secretary of the Corporation.
SECTION 2.11 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise
restricted by the certificate of incorporation, any action required to be taken
at any annual or special meeting of stockholders of the Corporation, or any
action which may be taken at any annual or special meeting of the stockholders,
may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be made by hand or by certified or registered mail, return receipt
requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein, unless, within sixty (60) days of the date
the earliest dated consent is delivered to the Corporation, a written consent or
consents signed by holders of a sufficient number of shares to take action are
delivered to the Corporation in the manner prescribed in the first paragraph of
this Section.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent of stockholders shall be given to those
stockholders who have not consented in writing.
SECTION 2.12 REMOTE COMMUNICATION. For the purposes of these By-Laws, if
authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxyholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication; provided, however, that (i) the Corporation
shall implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the Corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes
- 5 -
other action at the meeting by means of remote communication, a record of such
vote or other action shall be maintained by the Corporation.
ARTICLE III
DIRECTORS
SECTION 3.1 GENERAL POWERS. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, which may
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation and are not by law or these By-Laws directed or required
to be exercised or done by the stockholders.
SECTION 3.2 NUMBER OF DIRECTORS. The number of directors which shall
constitute the whole Board shall be such number as the Board of Directors shall
from time to time have designated, except that in the absence of any such
designation, such number shall be two (2). The directors shall be elected at the
annual meeting of stockholders for a term of one year and shall serve until that
director's successor is elected and qualified or until his or her earlier death,
resignation or removal. Directors shall be natural persons, but need not be
stockholders.
SECTION 3.3 VACANCIES. If the office of any director or directors becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office, or otherwise, or a new directorship is created, the directors then
in office or, upon their failure to act, the holders of a plurality of shares
issued and outstanding and entitled to vote in elections of directors, shall
choose a successor or successors, or a director to fill the newly created
directorship, who shall hold office for the unexpired term or until his or her
successor is elected and qualified.
SECTION 3.4 PLACE OF MEETINGS. The Board of Directors may hold its
meetings outside of the State of Delaware, at the office of the Corporation or
at such other places as they may from time to time determine, or as shall be
fixed in the respective notices or waivers of notice of such meetings.
SECTION 3.5 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation to serve at the pleasure of the whole Board. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. A
committee, to the extent provided in a resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that no committee shall have the power or
authority in reference to, adopting or recommending to the stockholders an
agreement of merger or consolidation, the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, a dissolution or a
revocation of a dissolution of the Corporation, or adopt, amend or repeal any
provision of the Certificate of Incorporation or these By-Laws. Unless the
resolution, the Certificate of Incorporation or these By-Laws expressly so
provides, no committee shall have the power or authority to declare a dividend
or to authorize the issuance of stock or other securities. Committees may have
such names as may be
- 6 -
determined from time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its proceedings, provide copies of
the same to the whole Board and shall report to the Board of Directors when
required or requested.
Unless otherwise provided in the resolution of the Board of Directors
designating the committee, a committee may create one or more subcommittees,
each subcommittee to consist of one or more members of the committee, and
delegate to a subcommittee any or all of the powers and authority of the
committee.
SECTION 3.6 COMPENSATION OF DIRECTORS. Directors, as such, may receive an
annual or periodic fee or such other compensation for their services and
reimbursement of expenses for attendance at meetings of the Board of Directors
as may be established by resolution of the Board. Nothing herein contained shall
be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
SECTION 3.7 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be required. An
annual meeting of the Board of Directors shall be held within ten (10) days
after the annual meeting of stockholders in each year. If the annual meeting of
the Board of Directors is not held immediately following the annual meeting of
stockholders, then notice of such meeting, unless waived, shall be given to each
director elected at the annual meeting of stockholders, at his or her address as
the same may appear on the records of the Corporation, or in the absence of such
address, at his or her residence or usual place of business, at least five (5)
days before the day on which such meeting is to be held. Any such meeting may be
held at such place as the Board may fix from time to time or as may be specified
or fixed in the notice or waiver thereof.
SECTION 3.8 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time on the call of the chief executive officer or at the
request in writing of one half (1/2) the directors then in office (rounded up to
the nearest whole number). Notice of any special meeting, unless waived, shall
be given to each director at the address on the records of the Corporation not
less than twenty-four (24) hours prior to the day on which such meeting is to be
held, if such notice is by electronic transmission, and not less than five (5)
days prior to the day on which the meeting is to be held if such notice is by
mail. If the Secretary shall fail or refuse to give such notice, then the notice
may be given by the officer or any one of the directors making the call.
Notwithstanding the foregoing, for purposes of dealing with an emergency
situation, as conclusively determined by the directors or officer calling the
meeting, notice may be given in person, by electronic transmission, by telephone
or by any other means that reasonably may be expected to provide similar notice,
not less than two (2) hours prior to the meeting. Any such meeting may be held
at such place as the Board may fix from time to time or as may be specified or
fixed in the notice or waiver thereof. Any meeting of the Board of Directors
shall be a legal meeting without any notice thereof having been given, if all
the directors shall be present thereat, and no notice of a meeting shall be
required to be given to any director who attends the meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a
special meeting of Directors.
- 7 -
SECTION 3.9 ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting, if a written consent to such action is signed by all
members of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
committee.
SECTION 3.10 QUORUM. Except as otherwise provided in these By-Laws, a
majority of the total number of directors shall constitute a quorum at any
meeting of the Board of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a quorum shall
be present. Notice of any adjourned meeting need not be given, except that
notice shall be given to all directors, if the adjournment is for more than
thirty (30) days.
SECTION 3.11 CONDUCT OF BUSINESS. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine. Except as otherwise provided by law or these
By-Laws, the act or vote 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. Any
director may require the "ayes" and "noes" to be taken on any question or vote
and recorded in the minutes. Members of the Board of Directors, or any committee
designated by the Board, may participate in a meeting of the Board or 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
participation in a meeting pursuant to this Section shall constitute presence in
person at such meeting.
SECTION 3.12 COMPENSATION OF DIRECTORS. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including their services as
members of committees of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 4.1 EXECUTIVE OFFICERS. The executive officers of the Corporation
shall be a President, such number of Vice Presidents, if any, as the Board of
Directors may determine, a Secretary, and a Controller. One person may hold any
number of offices.
SECTION 4.2 ELECTION, TERM OF OFFICE AND ELIGIBILITY. The executive
officers of the Corporation shall be elected annually by the Board of Directors,
at its annual meeting; provided, however, that new, replacement or additional
officers may be elected at any meeting of the Board. Each officer, except such
officers as may be appointed in accordance with the provisions of Section 4.3,
shall hold office until his or her successor shall have been duly chosen and
qualified or until his or her death, resignation or removal. Officers need not
be directors.
SECTION 4.3 SUBORDINATE OFFICERS. The Board of Directors may appoint such
Assistant Secretaries, Assistant Controllers, Treasurer and other officers, and
such agents or representatives as the Board may determine, to hold office for
such period and with such authority and to perform such duties as the Board may
from time to time determine. The Board
- 8 -
may, by specific resolution, empower the chief executive officer of the
Corporation or any Committee of the Board to appoint subordinate officers or
agents or representatives.
SECTION 4.4 REMOVAL. Any executive officer may be removed at any time,
either with or without cause, but only by the affirmative vote of the majority
of the total number of directors as at the time specified by the By-Laws. Any
subordinate officer may be removed at any time, either with or without cause, by
the majority vote of the directors present at any meeting of the Board or any
meeting of a committee having the power to appoint an individual to such office
or by the chief executive officer or any other officer empowered to appoint such
subordinate officers.
SECTION 4.5 THE PRESIDENT. The President shall be the chief executive
officer of the Corporation. The President shall have executive authority to see
that all orders and resolutions of the Board of Directors are carried into
effect and, subject to the control vested in the Board of Directors by law or
these By-Laws, shall administer and be responsible for the overall management of
the business and affairs of the Corporation. The President shall preside at all
meetings of the stockholders and of the Board of Directors. The President shall
perform all duties and have all powers which are commonly incident to the office
of the chief executive, including general supervision and direction of all of
the other officers, employees, agents and representatives of the Corporation.
The President shall perform such other duties as from time to time may be
delegated or assigned by the Board of Directors.
SECTION 4.6 VICE PRESIDENTS. In the event of the absence or disability of
the President, each Vice President, in the order designated, or in the absence
of any designation, then in the order of their election, shall perform the
duties of the President. Each Vice President shall also perform such other
duties as from time to time may be delegated or assigned by the Board of
Directors or by the chief executive officer of the Corporation.
SECTION 4.7 THE SECRETARY. The Secretary shall:
(a) Keep the minutes of the meetings of the stockholders and of
the Board of Directors;
(b) See that all notices are duly given in accordance with the
provisions of law or these By-Laws;
(c) Be custodian of the records and of the seal of the Corporation
and see that the seal or a facsimile or equivalent thereof is affixed to or
reproduced on all documents, the execution of which on behalf of the Corporation
under its seal is duly authorized;
(d) Have charge of the stock record books of the Corporation;
(e) In general, perform all duties incident to the office of
Secretary, and such other duties as are provided by these By-Laws and as from
time to time are delegated or assigned by the Board of Directors or by the chief
executive officer of the Corporation.
SECTION 4.8 ASSISTANT SECRETARIES. If one or more Assistant Secretaries
shall be appointed pursuant to the provisions of Section 4.3 respecting
subordinate officers, then, at the
- 9 -
request of the Secretary, or in the absence or disability of the Secretary, the
Assistant Secretary designated by the Secretary (or in the absence of such
designations, then any one of such Assistant Secretaries) shall perform the
duties of the Secretary and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the Secretary.
SECTION 4.9 THE CONTROLLER. The Controller shall:
(a) Receive and be responsible for all funds of and securities
owned or held by the Corporation and, in connection therewith, among other
things: keep or cause to be kept full and accurate financial records and
accounts for the Corporation; deposit or cause to be deposited to the credit of
the Corporation all moneys, funds and securities so received in such bank or
other depositary as the Board of Directors or an officer designated by the Board
may from time to time establish; and disburse or supervise the disbursement of
the funds of the Corporation as may be properly authorized.
(b) Render to the Board of Directors at any meeting thereof, or
from time to time whenever the Board of Directors or the chief executive
officer of the Corporation may require, financial and other appropriate reports
on the condition of the Corporation;
(c) In general, perform all the duties incident to the office of
Controller and such other duties as from time to time may be delegated or
assigned by the Board of Directors or by the chief executive officer of the
Corporation.
SECTION 4.10 ASSISTANT CONTROLLERS. If one or more Assistant Controllers
shall be appointed pursuant to the provisions of Section 4.3 respecting
subordinate officers, then, at the request of the Controller, or in his absence
or disability, the Assistant Controller designated by the Controller (or in the
absence of such designation, then any one of such Assistant Controllers) shall
perform all the duties of the Controller and when so acting shall have all the
powers of and be subject to all the restrictions upon, the Controller.
SECTION 4.11 GENERAL COUNSEL. The General Counsel, if any, shall be the
chief legal officer of the Corporation. The General Counsel shall, in general,
perform all the duties incident to the office of General Counsel and such other
duties as from time to time may be delegated or assigned by the Board of
Directors or by the chief executive officer of the Corporation. The General
Counsel, if any, shall also be a Vice President of the Corporation.
SECTION 4.12 SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors. No officer shall be prevented from
receiving a salary by reason of the fact that the officer is also a director of
the Corporation.
SECTION 4.13 BONDS. If the Board of Directors or the chief executive
officer shall so require, any officer or agent of the Corporation shall give
bond to the Corporation in such amount and with such surety as the Board of
Directors or the chief executive officer, as the case may be, may deem
sufficient, conditioned upon the faithful performance of their respective duties
and offices.
SECTION 4.14 DELEGATION OF DUTIES. In the absence of any officer of the
Corporation or for any other reason deemed sufficient by the Board of Directors,
the Board of Directors may, for
- 10 -
the time being, delegate any or all of the powers and duties of such officer to
any other officer or to any director.
ARTICLE V
SHARES OF STOCK
SECTION 5.1 REGULATION. Subject to the terms of any contract of the
Corporation, the Board of Directors may make such rules and regulations as it
may deem expedient concerning the issue, transfer, conversion and registration
of certificates for shares of the stock or other securities of the Corporation,
including the issue of new certificates for lost, stolen or destroyed
certificates, and including the appointment of transfer agents and registrars.
SECTION 5.2 STOCK CERTIFICATES. Certificates for shares of the stock or
other securities of the Corporation shall be numbered serially for each class of
stock, or series thereof, as they are issued, shall be impressed with the
corporate seal or a facsimile thereof, and shall be signed by the President or a
Vice President, and by the Secretary or Controller, or an Assistant Secretary or
an Assistant Controller; provided, however, that such signatures may be
facsimiles on any certificate countersigned by a transfer agent other than the
Corporation or its employee. Each certificate shall exhibit the name of the
Corporation, the class (or series of any class) and number of shares represented
thereby, and the name of the holder. The Corporation shall not have power to
issue a certificate in bearer form. Each certificate shall be otherwise in such
form as may be prescribed by the Board of Directors.
SECTION 5.3 UNCERTIFICATED SHARES. The Board of Directors may provide by
resolution that some or all of any or all classes or series of stock or other
securities of the Corporation shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution, every holder of stock represented by certificates and upon
request, every holder of uncertificated shares shall be entitled to have a
certificate signed in the name of the Corporation by the President or any Vice
President, and by the Secretary or an Assistant Secretary of the Corporation,
representing in certificate form the number of shares registered.
SECTION 5.3 RESTRICTION ON TRANSFER OF SECURITIES. Restrictions on the
transfer or registration of transfer of stock or other securities of the
Corporation may be imposed by the Certificate of Incorporation, these By-Laws,
an agreement among any number of security holders (but only if the agreement is
delivered to the Secretary of the Corporation and referenced on the
certificates, if any, representing such securities) or an agreement among
security holders and the Corporation. No restriction so imposed shall be binding
with respect to securities issued prior to the adoption of the restriction,
unless the holders of the securities are parties to an agreement or voted in
favor of the restriction. Without limiting the generality of the foregoing, a
restriction on the transfer of securities of the Corporation is permitted by
this Section, if it:
(a) Obligates the holder of the restricted securities to offer to
the Corporation or to any other holders of securities of the Corporation or to
any other person or to any
- 11 -
combination of the foregoing a prior opportunity, to be exercised within a
reasonable time, to acquire the restricted securities;
(b) Obligates the Corporation or any holder of securities of the
Corporation or any other person or any combination of the foregoing to purchase
the restricted securities;
(c) Requires the Corporation or the holders of any class of
securities of the Corporation to consent to any proposed transfer of the
restricted securities or to approve the proposed transferee of the restricted
securities;
(d) Prohibits the transfer of the restricted securities to
designated persons or classes of persons, and such designation is not manifestly
unreasonable; or
(e) Restricts transfer or registration of transfer in any other
lawful manner.
Unless noted conspicuously on the security, a restriction, even though
permitted by this Section, is ineffective, except against a person with actual
knowledge of the restriction.
SECTION 5.4 TRANSFERS. Transfers of stock or other securities of the
Corporation shall be made only upon the transfer books of the Corporation kept
at an office of the Corporation or by transfer agents designated to transfer
shares of the stock or other securities of the Corporation. Except where a
certificate is issued in accordance with Section 5.6, an outstanding certificate
for the number of shares involved shall be surrendered for cancellation before a
new certificate is issued therefore. As against the Corporation, a transfer of
securities can be made only on the books of the Corporation and in the manner
provided in these By-Laws, and the Corporation shall be entitled to treat the
owner of record of any securities as the owner thereof and shall not be bound to
recognize any equitable or other claim to or interest in such security on the
part of any other person, whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of the State of Delaware.
SECTION 5.5 RECORD DATE. In order that the Corporation may determine the
holders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof or to receive payment of any dividend or other distribution
or allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or other securities of the Corporation or for
the purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date on which the resolution
fixing the record date is adopted and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of any meeting of
stockholders, nor more than sixty (60) days prior to the time for such other
action as hereinbefore described. 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 or any adjournment thereof shall be at the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held, and, for determining holders entitled to receive
payment of any dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or for any other
purpose, the record date shall be at the close of business on the day on which
the Board of Directors adopts a resolution relating thereto.
- 12 -
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation 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 shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by law, the record date 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 in the manner prescribed by these By-Laws. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by law with respect to the proposed action by
written consent of the stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
SECTION 5.6 LOST CERTIFICATE. Any stockholder claiming that a certificate
representing shares of stock or other securities of the Corporation has been
lost, stolen or destroyed may make an affidavit or affirmation of the fact and,
if the Board of Directors so requires, advertise the same in a manner designated
by the Board, and give the Corporation a bond of indemnity in form and with
security for an amount satisfactory to the Board (or an officer designated by
the Board), whereupon a new certificate may be issued of the same tenor and
representing the same number, class and/or series of shares as were represented
by the certificate alleged to have been lost, stolen or destroyed.
ARTICLE VI
BOOKS AND RECORDS
SECTION 6.1 LOCATION. The books, accounts and records of the Corporation
may be kept at such place or places within or without the State of Delaware as
the Board of Directors may from time to time determine.
SECTION 6.2 FORM. The books, accounts and records of the Corporation,
including its stock ledger, books of account and minute books, shall be
maintained in the regular course of its business and may be kept on, or be in
the form of, computer files or any other commonly available information storage
device that creates a record that can be retained, retrieved and reviewed and
that may be directly reproduced in paper form; provided that the books, accounts
and records so kept are readily available and can be easily converted into
clearly legible form.
SECTION 6.3 INSPECTION. The books, accounts, and records of the
Corporation shall be open to inspection by any member of the Board of Directors
at all times; and open to inspection by the stockholders at such times, and
subject to such regulations as the Board of Directors may prescribe, except as
otherwise provided by statute.
- 13 -
SECTION 6.4 CORPORATE SEAL. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by the
Controller or by an Assistant Secretary or Assistant Controller.
ARTICLE VII
DIVIDENDS AND RESERVES
SECTION 7.1 DIVIDENDS. The Board of Directors of the Corporation, subject
to any restrictions contained in the Certificate of Incorporation and other
lawful commitments of the Corporation, may declare and pay dividends upon the
shares of its capital stock either out of the surplus of the Corporation, as
defined in and computed in accordance with the General Corporation Law of the
State of Delaware, or in case there shall be no such surplus, out of the net
profits of the Corporation for the fiscal year in which the dividend is declared
and/or the preceding fiscal year. If the capital of the Corporation, computed in
accordance with the General Corporation Law of the State of Delaware, shall have
been diminished by depreciation in the value of its property, or by losses, or
otherwise, to an amount less than the aggregate amount of the capital
represented by the issued and outstanding stock of all classes having a
preference upon the distribution of assets, the Board of Directors of the
Corporation shall not declare and pay out of such net profits any dividends upon
any shares of any classes of its capital stock until the deficiency in the
amount of capital represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets shall have been repaired.
SECTION 7.2 RESERVES. The Board of Directors of the Corporation may set
apart, out of any of the funds of the Corporation available for dividends, a
reserve or reserves for any proper purpose and may abolish any such reserve.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 RIGHT TO INDEMNIFICATION. Each person who was or is a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or who is or was serving at the request of the Corporation as a
director, manager, officer, trustee, employee or agent of another corporation or
of a partnership, limited liability company, joint venture, trust, nonprofit
entity or other enterprise, including service with respect to employee benefit
plans (an "indemnitee"), whether the basis of the proceeding is alleged action
in an official capacity as a director, manager, officer, employee or agent or in
any other capacity while serving as a director, manager, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same now or
may hereafter exist (but, in the case of any change, only to the extent that
such change authorizes the Corporation to provide broader indemnification rights
than the law permitted the Corporation to provide prior to such change) against
all expenses, liabilities and losses (including attorneys' fees, judgments,
fines, ERISA
- 14 -
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the indemnitee in connection therewith and
such indemnification shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the indemnitee's heirs,
executors and administrators. The Corporation shall be required to indemnify a
person in connection with a proceeding (or part thereof) initiated by such
person, only if the proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
SECTION 8.2 RIGHT TO ADVANCEMENT OF EXPENSES. In addition to the right to
indemnification conferred in Section 8.1, an indemnitee shall also have the
right to be paid by the Corporation the expenses (including attorney's fees)
incurred in defending any such proceeding in advance of its final disposition
(an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (an "undertaking") by or on behalf of such indemnitee, to repay all
amounts so advanced, if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (a "final adjudication")
that such indemnitee is not entitled to be indemnified for expenses under this
Section 8.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 8.1 and 8.2 shall be contract rights, and such
rights shall continue as to an indemnitee who has ceased to be a director,
manager, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
SECTION 8.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
8.1 and 8.2 is not paid in full by the Corporation within sixty (60) days after
a written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty (20) days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including directors who are not parties to such action, a committee of such
directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances, because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including directors who are
not parties to such action, a committee of such directors, independent legal
counsel or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
- 15 -
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article VIII or otherwise shall be on the Corporation.
SECTION 8.4 NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article VIII shall not be exclusive of any
other right which any indemnitee may have or hereafter acquire under any
statute, certificate of incorporation, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
SECTION 8.5 OTHER INDEMNIFICATION. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director,
manger, officer, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust, nonprofit entity or other enterprise
shall be reduced by any amount such person may collect as indemnification from
such other entity or enterprise.
SECTION 8.6 INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee, agent or
representative of the Corporation or another corporation, limited liability
company, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
SECTION 8.7 WITNESS EXPENSES. To the extent that any director, officer,
employee, agent or representative of the Corporation is by reason of such
position, or a position with another entity or enterprise at the request of the
Corporation, a witness or a deponent in any proceeding, such person shall be
reimbursed for all expenses actually and reasonably incurred by such person or
on their behalf in connection therewith.
SECTION 8.8 INDEMNIFICATION OF EMPLOYEES, AGENTS AND REPRESENTATIVES. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee, agent or representative of the Corporation to the fullest extent
of the provisions of this Article VIII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
SECTION 8.9 NO ADVERSE CHANGES. Any amendment, modification or repeal of
any provision of this Article VIII, whether by the stockholders or Board of
Directors of the Corporation, shall not adversely affect any right or protection
of an indemnitee in respect of any act or omission occurring prior to the time
of such amendment, modification or repeal.
ARTICLE IX
NOTICE
SECTION 9.1 NOTICES. Except as otherwise required by law, all notices
required to be given to the Corporation or to any stockholder, director,
officer, employee or agent shall be in
- 16 -
writing and may in every instance be effectively given by hand delivery to the
recipient thereof, by depositing such notice in the mails, postage paid, or by
sending such notice by electronic transmission or by receipted overnight
delivery service. Any such notice shall be addressed to the last known address
of such person as the same appears on the books of the Corporation. The time of
the giving of the notice shall be the time when such notice is received, if hand
delivered, or dispatched, if delivered through the mails or by electronic
transmission or receipted by overnight delivery service.
SECTION 9.2 WAIVER OF NOTICE. Whenever any notice is required to be given
under provision of law or these By-Laws, a written waiver, signed by the person
entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein or before or
after the meeting is held, shall be deemed equivalent to notice. If a waiver is
given by electronic transmission, the electronic transmission must either set
forth or be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice or any
waiver by electronic transmission.
SECTION 9.3 NOTICE BY ELECTRONIC TRANSMISSION. (a) Without limiting the
manner by which notice otherwise may be given effectively to stockholders, any
notice to stockholders given by the Corporation under law or these By-Laws shall
be effective if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the Corporation. Any such consent shall be
deemed revoked, if (1) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance with
such consent and (2) such inability becomes known to the Secretary or an
Assistant Secretary of the Corporation or to the transfer agent, or other person
responsible for the giving of notice; provided, however, that the inadvertent
failure to treat such inability as a revocation shall not invalidate any meeting
or other action.
(b) Notice to stockholders may be given by writing in paper form or
solely in the form of electronic transmission as permitted by this subsection
(b). If given by writing in paper form, notice may be delivered personally, may
be delivered by mail, or, with the consent of the stockholder entitled to
receive notice, may be delivered by facsimile telecommunication or any of the
other means of electronic transmission specified in this subsection (b). If
mailed, such notice shall be delivered by postage prepaid envelope directed to
each stockholder at such stockholder's address as it appears in the records of
the Corporation. Any notice to stockholders given by the Corporation shall be
effective if delivered or given by a form of electronic transmission to which
the stockholder to whom the notice is given has consented. Notice given pursuant
to this subsection shall be deemed given: (1) if by facsimile telecommunication,
when directed to a facsimile telecommunication number at which the stockholder
has consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice; (3) if by posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of (A) such
- 17 -
posting and (B) the giving of such separate notice; and (4) if by any other form
of electronic transmission, when directed to the stockholder. An affidavit of
the secretary or an assistant secretary or of the transfer agent or other agent
of the Corporation that the notice has been given by personal delivery, by mail,
or by a form of electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
(c) For purposes of these By-Laws, "electronic transmission" means
any form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by the
recipient through an automated process.
(d) The provisions of this Section 9.3 shall not apply to notices
required under Sections 164, 296, 311, 312 or 324 of the Delaware General
Corporation Law.
SECTION 9.4 NOTICE TO STOCKHOLDERS SHARING AN ADDRESS. Without limiting
the manner by which notice otherwise may be given effectively to stockholders,
any notice to stockholders given by the Corporation under or these By-Laws shall
be effective if given by a single written notice to stockholders who share an
address, if consented to by the stockholders at that address to whom such notice
is given. Any such consent shall be revocable by the stockholder by written
notice to the Corporation. Any stockholder who fails to object in writing to the
Corporation, within sixty (60) days of having been given written notice by the
Corporation of its intention to send the single notice permitted under this
Section 9.4, shall be deemed to have consented to receiving such single written
notice. The provisions of this Section 9.4 shall not apply to notices required
under Sections 164, 296, 311, 312 or 324 of the Delaware General Corporation
Law.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 FISCAL YEAR. The fiscal year of the Corporation shall be as
fixed by the Board of Directors, but shall initially end on December 31 of each
year.
SECTION 10.2 FACSIMILE SIGNATURES. In addition to the provisions for use
of facsimile signatures or signatures by electronic transmission elsewhere
specifically authorized in these By-Laws, facsimile signatures or signatures by
electronic transmission of any officer of the Corporation may be used whenever
and as authorized by the Board of Directors or a committee thereof.
SECTION 10.3 CONTRACTS AND OTHER INSTRUMENTS. The Board of Directors may
authorize any officer or agent to enter into any contract or execute and deliver
any instrument in the name and on behalf of the Corporation and such authority
may be general or confined to specific instances. All checks, drafts or other
orders for the payment of money and all notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by the chief executive
officer or such other officer or agent as shall from time to time be designated
by resolution of the Board of Directors. The Board of Directors, the chief
executive officer or another officer designated by the Board shall appoint
banks, trust companies or other
- 18 -
depositories in which shall be deposited from time to time the money or
securities of the Corporation.
SECTION 10.4 SECURITIES IN OTHER CORPORATIONS. Any shares of stock or
other securities in any corporation or other entity, which may from time to time
be held by this Corporation, may be represented and voted at any meeting of
security holders of such entity or otherwise, and any and all rights and powers
which the Corporation may possess by reason of its ownership of such securities
may be exercised, by the President or a Vice President, or by any other person
authorized by the Board of Directors, or by any proxy designated by written
instrument of appointment executed in the name of this Corporation by its
President or a Vice President. Securities belonging to the Corporation need not
stand in the name of the Corporation, but may be held for the benefit of the
Corporation in the individual name of the Controller or of any other nominee
designated for the purpose by the Board of Directors. Certificates for
securities held for the benefit of the Corporation shall be endorsed in blank or
have proper stock or other transfer powers attached, so that the securities and
any certificate evidencing the same are at all times in due form for transfer,
and shall be held for safekeeping in such manner as shall be determined from
time to time by the Board of Directors.
SECTION 10.5 TIME PERIODS. In applying any provision of these By-Laws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
SECTION 10.6 AMENDMENT OF BY-LAWS. The stockholders, by the affirmative
vote of the holders of a majority of the stock issued and outstanding and having
voting power, may adopt, amend or repeal any provision of these By-Laws at any
meeting of stockholders, if the notice of such meeting lists amendment,
modification or repeal among the purposes of the meeting and sets forth the
amendment, modification or repeal to be voted upon at the meeting. Any
amendment, modification or repeal of any provision of these By-Laws made by the
stockholders shall not be amended, modified or repealed by the Board of
Directors.
The Board of Directors, by the affirmative vote of a majority of the whole
Board, may adopt, amend or repeal any provision of these By-Laws at any meeting,
except as provided in the above paragraph. Any amendment, modification or repeal
of any provision of these By-Laws made by the Board of Directors may be amended,
modified or repealed by the stockholders.
- 19 -