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Exhibit 4
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
FLORAFAX INTERNATIONAL, INC.
Pursuant to the General Corporation Law of Delaware, the undersigned
corporation adopts the following Certificate of Amendment to its Restated
Certificate of Incorporation:
FIRST: ARTICLE IV is amended to read in its entirety as follows:
ARTICLE IV
The total number of shares which this Corporation is authorized to issue
is Eighteen Million (18,000,000) shares of Common Stock, par value $.01 per
share and Six Hundred Thousand (600,000) shares of Preferred Stock, par value
$10.00 per share.
The Preferred Stock shall be issued in one or more series. The Board of
Directors is hereby expressly authorized to issue the shares of Preferred Stock
in such series and to fix from time to time before issuance the number of shares
to be included in any series and the designation, relative rights, preferences
and limitations of all shares of such series. The authority of the Board of
Directors with respect to each series shall include, without limitation thereto,
the determination of any or all of the following and the shares of each series
may vary from the shares of any other series in the following respects:
(a) The number of shares constituting such series and the designation
thereof to distinguish the shares of such series from the shares of all
other series;
(b) The annual dividend rate on the shares of that series and whether
such dividends shall be cumulative and, if cumulative, the date from
which dividends shall accumulate;
(c) The redemption price or prices for the particular series, if
redeemable, and the terms and conditions of such redemption;
(d) The preference, if any, of shares of such series in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation;
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(e) The voting rights, if any, in addition to the voting rights
prescribed by law and the terms of exercise of such voting rights;
(f) The right, if any, of shares of such series to be converted into
shares of any other series or class and the terms and conditions of such
conversion; and
(g) Any other relative rights, preferences and limitations of that
series.
SECOND: ARTICLE IX is hereby added as follows:
ARTICLE IX
The Corporation shall not be governed by Subchapter VI, Section 203,
"Business Combinations With Interested Stockholders", of the General Corporation
Law of Delaware from and after January 7, 1995.
We, the undersigned Chairman of the Board and Secretary of Florafax
International, Inc. (the "Corporation"), do hereby certify under the seal of
said Corporation that this Certificate of Amendment to the Restated Certificate
of Incorporation of the Corporation, was duly adopted in accordance with Section
242 of the General Corporation Law of Delaware.
IN WITNESS WHEREOF, we have signed this Certificate of Amendment and
caused the corporate seal of the Corporation to be hereunto affixed this 7th
day of January, 1994.
/s/ Andrew W. Williams
----------------------
Andrew W. Williams,
Chairman of the Board
(S E A L)
ATTEST:
/s/ Ronald W. Fore
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Ronald W. Fore, Secretary
3
State of Oklahoma )
) ss.
County of Tulsa )
Be it remembered that on this 7th day of January, 1994, personally came
before me, a Notary Public in and for the County and State aforesaid, Andrew W.
Williams, Chairman of the Board of Florafax International, Inc., and Ronald W.
Fore, Secretary of Florafax International, Inc., each of whom being a party to
the foregoing certificate, known to me personally to be such, and duly
acknowledged the said certificate to be their act and deed and the act and deed
of Florafax International, Inc. and that the facts therein stated are true.
/s/ Carolyn S. Lee
------------------
Notary Public
My Commission Expires:
April 13, 1995
- ----------------------
(S E A L)
4
RESTATED
CERTIFICATE OF INCORPORATION
OF
FLORAFAX INTERNATIONAL, INC.
We, the Chairman and Chief Executive Officer and the Secretary of Florafax
International, Inc. (the "Corporation"), do hereby certify under the seal of
said Corporation as follows:
Article 1: The name of the Corporation is Florafax International, Inc. and
the original name under which the Corporation was formed is Spotts Florafax
Corporation.
Article 2: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State, State of Delaware, on October 29, 1970.
Article 3: This Restated Certificate of Incorporation was duly adopted in
accordance Section 242 and Section 245 of the Delaware General Corporation Law.
Article 4: This Restated Certificate of Incorporation restates and
integrates into a single instrument prior amendments and further amends the
Certificate of Incorporation by increasing the number of authorized shares of
common stock and decreasing the par value of the common stock.
Article 5: The text of this Restated Certificate of Incorporation of
Florafax International, Inc. as so restated and amended is amended to read in
its entirety as follows:
ARTICLE I
The name of the Corporation is FLORAFAX INTERNATIONAL, INC.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name and address of the Corporation's registered agent is The Corporation
Trust Company, 1209 Orange Street, Wilmington, Delaware 19801.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
The total number of shares which this Corporation is authorized to
issue is Nine Million (9,000,000) shares of Common Stock, par value $.01 per
share and Three Hundred Thousand (300,000) shares of Preferred Stock, par value
$10.00 per share.
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The Preferred Stock shall be issued in one or more series. The Board
of Directors is hereby expressly authorized to issue the shares of Preferred
Stock in such series and to fix from time to time before issuance the number of
shares to be included in any series and the designation, relative rights,
preferences and limitations of all shares of such series. The authority of the
Board of Directors with respect to each series shall include, without
limitation thereto, the determination of any or all of the following and the
shares of each series may vary from the shares of any other series in the
following respects:
(a) The number of shares constituting such series and the
designation thereof to distinguish the shares of such series
from the shares of all other series;
(b) The annual dividend rate on the shares of that series and
whether such dividends shall be cumulative and, if cumulative,
the date from which dividends shall accumulate;
(c) The redemption price or prices for the particular series,
if redeemable, and the terms and conditions of such redemption;
(d) The preference, if any, of shares of such series in the
event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation;
(e) The voting rights, if any, in addition to the voting
rights prescribed by law and the terms of exercise of such voting
rights;
(f) The right, if any, of shares of such series to be converted into
shares of any other series or class and the terms and conditions
of such conversion; and
(g) Any other relative rights, preferences and limitations of that
series.
ARTICLE V
The amount of the authorized stock of the Corporation of any class or
classes may be increased or decreased by the affirmative vote of the holders of
a majority of the stock of the Corporation entitled to vote.
ARTICLE VI
No contract or transaction between the Corporation and one or more of
its directors or officers or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
directors or officers are present at or participate in the meeting of the board
or committee thereof which authorizes the contract or transaction, or solely
because the directors or officers or their votes are counted for such purpose.
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ARTICLE VII
In furtherance and not in limitation of the power conferred upon
the Board of Directors by law, the Board of Directors shall have power to make,
adopt, alter, amend and repeal, from time to time Bylaws of the Corporation,
subject to the right of the stockholders to alter and repeal Bylaws made by the
Board of Directors.
ARTICLES VIII
To the maximum extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, no director of
this Corporation shall be liable to the Corporation or its shareholders for
monetary damages arising by reason of actions or omissions constituting a
breach of fiduciary duty as a director.
IN WITNESS WHEREOF, we have signed this Restated Certificate of
Incorporation and caused the corporate seal of the Corporation to be hereunto
affixed this 8th day of December, 1988.
/s/ Floyd Cox, Jr.
------------------------------------
Floyd Cox, Jr. Chairman of the
Board and Chief Executive Officer
(SEAL)
ATTEST:
/s/ Ronald W. Fore
- -------------------------------------
Ronald W. Fore, Secretary
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
Be it remembered that on this 8th day of December, 1988,
personally came before me, a Notary Public in and for the County and State
aforesaid, Floyd Cox, Jr., Chairman of the Board and Chief Executive Officer of
Florafax International, Inc., and Ronald W. Fore, Secretary of Florafax
International, Inc., each of whom being a party to the foregoing certificate,
known to me personally to be such, and duly acknowledged the said certificate to
be his act and deed and the act and deed of Florafax International, Inc. and
that the facts therein stated are true.
/s/ Marcia Nole
------------------------------------
Notary Public
My commission expires:
6-29-90
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[SEAL]
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BYLAWS
OF
FLORAFAX INTERNATIONAL, INC.
ADOPTED
July 8, 1988
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INDEX
ARTICLE I - OFFICERS
SECTION 1.01 Registered Office and Registered
Agent................................ 1
SECTION 1.02 Other Offices........................ 1
ARTICLE II - SHAREHOLDERS
SECTION 2.01 Place of Meetings................... 1
SECTION 2.02 Annual Meetings..................... 1
SECTION 2.03 Special Meetings.................... 2
SECTION 2.04 Notice of Meetings.................. 2
SECTION 2.05 Quorum and Adjourned Meetings....... 2
SECTION 2.06 Conduct of Meetings................. 3
SECTION 2.07 Voting.............................. 3
SECTION 2.08 Consent of Shareholders in Lieu
of a Meeting........................ 3
SECTION 2.09 Voting Lists........................ 4
SECTION 2.10 Annual Report....................... 4
ARTICLE III - BOARD OF DIRECTORS
SECTION 3.01 Powers.............................. 4
SECTION 3.02 Number, Qualifications and Term
of Office........................... 4
SECTION 3.03 Vacancies........................... 4
SECTION 3.04 Resignations........................ 5
SECTION 3.05 Organization........................ 5
SECTION 3.06 Place of Meetings................... 5
SECTION 3.07 Organizational Meetings............. 5
SECTION 3.08 Regular Meetings.................... 5
SECTION 3.09 Special Meetings.................... 6
SECTION 3.10 Quorum and Adjourned Meetings....... 6
SECTION 3.11 Unanimous Consent of Directors in
Lieu of a Meeting................... 6
SECTION 3.12 Executive and Other Committees...... 6
SECTION 3.13 Compensation of Directors........... 7
ARTICLE IV - MEETINGS GENERALLY
SECTION 4.01 Notice.............................. 7
SECTION 4.02 Waiver of Notice.................... 7
SECTION 4.03 Conference Telephone Meetings....... 8
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ARTICLE V - OFFICERS
SECTION 5.01 Number, Qualifications and
Designation.......................... 8
SECTION 5.02 Election, Term of Office and Removal. 8
SECTION 5.03 Removal of Officers.................. 8
SECTION 5.04 Chairman of the Board................ 9
SECTION 5.05 President............................ 9
SECTION 5.06 Vice Presidents...................... 9
SECTION 5.07 Secretary............................ 9
SECTION 5.08 Treasurer............................ 10
SECTION 5.09 Controller........................... 10
SECTION 5.10 Assistant Officers................... 10
SECTION 5.11 Bonds................................ 11
SECTION 5.12 Compensation......................... 11
ARTICLE VI - STOCK
SECTION 6.01 Form of Stock Certificates and
Stock Transfer Agents................ 11
SECTION 6.02 Issuance............................. 11
SECTION 6.03 Transfer............................. 12
SECTION 6.04 Dividends............................ 12
SECTION 6.05 Lost, Stolen, Mutilated or
Destroyed Certificates............... 12
SECTION 6.06 Record Holder of Shares.............. 12
SECTION 6.07 Determination of Record Date......... 13
ARTICLE VII - INDEMNIFICATION OF DIRECTORS,
OFFICERS AND OTHER AUTHORIZED REPRESENTATIVES
SECTION 7.01 Indemnification of Authorized
Representatives in Third Party
Proceedings......................... 13
SECTION 7.02 Indemnification of Authorized
Representatives in Corporate
Proceedings......................... 14
SECTION 7.03 Mandatory Indemnification of
Authorized Representatives.......... 14
SECTION 7.04 Determination of Entitlement to
Indemnification..................... 15
SECTION 7.05 Advancing Expenses.................. 15
SECTION 7.06 Employee Benefit Plans.............. 15
SECTION 7.07 Scope of Article.................... 16
SECTION 7.08 Reliance on Provisions.............. 16
SECTION 7.09 Insurance........................... 16
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ARTICLE VIII - CERTAIN TRANSACTIONS
SECTION 8.01 Transactions with Directors or
Officers............................ 16
ARTICLE IX - GENERAL PROVISIONS
SECTION 9.01 Contracts........................... 17
SECTION 9.02 Corporate Seal...................... 17
SECTION 9.03 Checks.............................. 17
SECTION 9.04 Deposits............................ 17
SECTION 9.05 Form of Records..................... 17
SECTION 9.06 Fiscal Year......................... 18
SECTION 9.07 Amendment of Bylaws................. 18
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B Y L A W S
OF
FLORAFAX INTERNATIONAL, INC.
ARTICLE I
OFFICES
SECTION 1.01 REGISTERED OFFICE AND REGISTERED AGENT. The registered
office and registered agent shall be designated in duly adopted actions of the
Board of Directors. Each registered office and registered agent may be changed
from time to time by a duly adopted action of the Board of Directors, and the
Corporation shall file an appropriate statement of change of registered office
or registered agent promptly after the taking of such action in accordance with
applicable law.
SECTION 1.02 OTHER OFFICES. The Corporation may also have offices at such
other places within or without the state of incorporation of the Corporation as
the Board of Directors may from time to time determine or the business of the
Corporation requires.
ARTICLE II
SHAREHOLDERS
SECTION 2.01 PLACE OF MEETINGS. All meetings of the shareholders of the
Corporation shall be held at the principal executive office of the Corporation
unless otherwise determined by the Board of Directors and specified in the
notice of meeting, in which event the meeting shall be held at the place within
or without the state of incorporation as shall be designated in the notice of
such meeting.
SECTION 2.02 ANNUAL MEETINGS. The Board of Directors may fix the date and
time of the annual meeting of the shareholders, but if no such date and time is
fixed by the Board, the annual meeting shall be held on a third Tuesday in
January, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at 10:00 a.m. local time. At the annual meeting, the
shareholders then entitled to vote shall elect directors and shall transact
such other business as may properly be brought before the meeting.
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SECTION 2.03 SPECIAL MEETINGS. Special meetings of the shareholders of
the Corporation may be called for any purpose or purposes for which meetings
may lawfully be called at any time by the Chairman of the Board, if one is
elected, or by the President or by a majority of the Board of Directors, and
shall be called after the Corporation's receipt of the request in writing of
shareholders owning one-fourth of the amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Every request for a
special meeting shall state the specific purpose or purposes of the meeting.
The date of the meeting shall be held at such date and time as the Chairman of
the Board may fix, not less than 10 (except as otherwise required by law) nor
more than 60 days after the receipt of the request, and the Secretary shall
give due notice thereof. If the Chairman of the Board shall neglect or refuse
to fix the time and date of such meeting and cause the Secretary to give notice
thereof, the person or persons calling the meeting may do so.
SECTION 2.04 NOTICE OF MEETINGS. Written notice of the place, date and
hour of every meeting of the shareholders, whether annual or special, shall be
given to each shareholder of record entitled to vote at the meeting not less
than 10 (except as otherwise required by law) nor more than 60 days before the
date of the meeting. Every notice of a special meeting shall state the purpose
or purposes thereof.
SECTION 2.05 QUORUM AND ADJOURNED MEETINGS. The record date for
determining shareholders entitled to notice of and to vote at meetings shall
be determined in accordance with Section 6.07 hereof. The record holders of
a majority of the stock issued and outstanding (not including treasury stock)
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the shareholders for the transaction
of business, except as otherwise provided by law, by the Corporation's
Certificate of Incorporation or by these Bylaws. If, however, such quorum
shall not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present or represented. At any such adjourned meeting, at which a quorum shall
be present in person or represented by proxy, any business may be transacted
which might have been transacted at the meeting as originally notified. When a
quorum is present at any meeting, the vote of the holders of the majority of
the stock having voting power present in person or represented by proxy shall
decide all questions brought before such meeting, unless the question is one
upon which, by expressed provision of applicable law, the
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Corporation's Certificate of Incorporation or these Bylaws, a different
vote is required, in which case such expressed provision shall govern and
control the decision of such question. The shareholders present in person or
represented by proxy at a duly organized meeting at which a quorum is present
may continue to do business until adjournment, notwithstanding withdrawal of
enough shareholders to leave less than a quorum.
SECTION 2.06 CONDUCT OF MEETINGS. All annual and special meetings of
shareholders shall be conducted in accordance with such rules and procedures as
the Board of Directors may determine, subject to the requirements of applicable
law and, as to matters not governed by such rules and procedures, as the
chairman of such meetings shall determine. The chairman of any annual or
special meeting of shareholders shall be the Chairman of the Board or in his
absence, the President of the Corporation, or in his absence the person elected
to so serve by the Board of Directors. The Secretary, or in the absence of the
Secretary, a person designated by the chairman of the meeting, shall act as
secretary of the meeting.
SECTION 2.07 VOTING. At every meeting of the shareholders, each
shareholder shall be entitled to one vote in person or by proxy for each share
of capital stock having voting power held of record by such shareholder. All
proxies shall be filed with the secretary of the meeting before the meeting is
called to order. Except as otherwise specifically provided by law or by the
Certificate of Incorporation or by these Bylaws, a majority of the valid votes
cast shall be necessary and sufficient to decide any questions which shall come
before any meeting of the shareholders. In case of any challenge of the right
of a given shareholder to vote in person or by proxy, the chairman of the
meeting hereinafter provided for shall be authorized to make the appropriate
determination, and his decision shall be final. No proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
SECTION 2.08 CONSENT OF SHAREHOLDERS IN LIEU OF A MEETING. Any action
required to be taken at any annual or special meeting of shareholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such shareholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing setting forth the action so taken shall
be signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize the taking of such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of action by the shareholders without a
meeting by less than unanimous written consent shall be given to those
shareholders entitled to vote on the action who have not consented in writing
to such action.
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SECTION 2.09 VOTING LISTS. The Secretary shall cause the Corporation to
prepare at least ten (10) days before every meeting of shareholders a complete
list of the shareholders entitled to vote at the meeting. The list shall be
arranged in alphabetical order showing the address of each shareholder and the
number of shares registered in the name of each shareholder. Such list shall
be open to the examination of any shareholder for any lawful purpose during
ordinary business hours for a period of at least ten (10) days prior to the
meeting either at the principal executive office of the Corporation or at the
place where the meeting is to be held. The list shall also be available and
open for inspection during the whole time of the meeting and may be inspected
by any shareholder or authorized representative of a shareholder who is
present.
SECTION 2.10 ANNUAL REPORT. The Board of Directors, through the officers
of the Corporation, shall present at each annual meeting, and at any special
meeting of the shareholders when called for by vote a quorum of the
shareholders, a full and clear statement of the business and condition of the
Corporation.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01 POWERS. The Board of Directors shall have full power to
manage the business and affairs of the Corporation; and all powers of the
Corporation, except those specifically reserved to the shareholders by law, the
Certificate of Incorporation or these Bylaws, are hereby granted to and vested
in the Board of Directors.
SECTION 3.02 NUMBER, QUALIFICATIONS AND TERM OF OFFICE. The Board of
Directors shall consist of such number of directors as may be determined from
time to time by resolution of the Board of Directors; provided that the Board
shall consist of not less than three (3) nor more than nine (9) persons. No
director need be an officer or shareholder of the Corporation, but each
director shall be a natural person 21 years of age or older. Each Director
shall serve until the next annual meeting of the shareholders or until his
successor shall have been duly elected and qualified, except in the event of
his death, resignation or removal.
SECTION 3.03 VACANCIES. Any director may be removed, either for or
without cause, at any meeting of shareholders by the affirmative vote of a
majority in number of shares of the shareholders present in person or by proxy
at such meeting and entitled to vote for the election of such director,
provided notice of the intention to act upon such matter shall have been
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given in the notice calling such meeting. Vacancies and newly created
directorships resulting from any increase in the authorized number of Directors
may be filled by a majority of the Directors then in office, though less than a
quorum, or by a sole remaining Director, and any Director so chosen shall hold
office until the next annual election or until his successor is duly elected
and qualified. If there are no Directors in office, then an election of
Directors may be held in the manner provided by law. If, at the time of
filling any vacancy or any newly created directorship, the Directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), a court of competent jurisdiction
may, upon application of shareholders holding of record at least 10 percent of
the total number of the shares at the time outstanding having the right to vote
for such Directors, summarily order an election to be held to fill any such
vacancies or newly created directorships or to replace the Directors chosen by
the Directors then in office.
SECTION 3.04 RESIGNATIONS. Any Director of the Corporation may resign at
any time by giving written notice to the Board of Directors, Chairman of the
Board, President or the Secretary of the Corporation. Such resignation shall
take effect upon receipt by the Corporation of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 3.05 ORGANIZATION. At every meeting of the Board of Directors,
the Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, the Director chosen by a
majority of the Directors present, shall preside, and the Secretary, or, in his
absence, the person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
SECTION 3.06 PLACE OF MEETINGS. The Board of Directors may hold its
meetings, both regular and special, at such place or places within or without
the state of incorporation as the Board of Directors may from time to time
select, as designated in the notice calling the meeting.
SECTION 3.07 ORGANIZATIONAL MEETINGS. The first meeting of each newly
elected Board of Directors shall be held without notice immediately following
the annual meeting of shareholders, unless the Board of Directors shall
determine otherwise.
SECTION 3.08 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall be
designated from time to time by a duly adopted action of the Board of Directors.
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SECTION 3.09 SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board or by two or more of
the Directors. Notice of each special meeting shall be given to each director
by telephone, telegram, telecopy, in writing or in person at least 24 hours (in
the case of notice by telephone, in person or actual notice however received)
or 48 hours (in the case of notice by telegram, or telecopy or similar wire
communication) or five (5) days (in the case of notice by mail or otherwise)
before the time at which the meeting is to be held. Each such notice shall
state the date, time and place of the meeting to be so held, and the purpose or
purposes for such special meeting need not be specified except as required by
law, the Certificate of Incorporation or these Bylaws.
SECTION 3.10 QUORUM AND ADJOURNED MEETINGS. At all meetings of the Board
a majority of the Directors shall constitute a quorum for the transaction of
business, and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, by the Certificate of
Incorporation or these Bylaws. If a quorum shall not be present at any meeting
of the Board of Directors, a majority of the Directors present thereat may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
SECTION 3. 11 UNANIMOUS CONSENT OF DIRECTORS IN LIEU OF A MEETING. Unless
otherwise restricted by law, the Certificate 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, without
prior notice and without a vote if all members of the Board or the Committee,
as the case may be, consent thereto in writing either before or after the
taking of action with respect thereto. The written consent shall be filed with
the minutes of proceedings of the Board or the Committees.
SECTION 3.12 EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may,
by resolution adopted by a majority of the whole Board, designate an Executive
Committee and one or more other committees, each committee to consist of one or
more Directors. Any such Committee to the extent provided in the resolution
establishing such Committee and not otherwise restricted or limited by
applicable law or the Certificate of Incorporation or these Bylaws, shall have
and may exercise all the power and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including the power
or authority to declare a dividend, to authorize the issuance of stock, to
adopt a certificate of ownership and merger and to authorize the seal of the
Corporation to be affixed to all papers
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which may require it; but no such Committee shall have the power or authority
in reference to (1) amending the Certificate of Incorporation (except that a
Committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of the stock adopted by the Board of
Directors, as permitted by applicable law, fix any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the Corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation), (2) adopting
an agreement of merger or consolidation, recommending to the shareholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, (3) recommending to the shareholders the dissolution of
the Corporation or a revocation of a dissolution, or (4) amending the 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. Each Committee shall keep regular minutes of its meetings and
file the same with the minutes of the Board of Directors.
SECTION 3.13 COMPENSATION OF DIRECTORS. Unless otherwise restricted by
law, the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the authority to fix the compensation of Directors. The Directors
shall be reimbursed their actual reasonable expenses, if any, of attendance at
any meeting of the Board of Directors and any Committee thereof and may be paid
a fixed sum for attendance at each such meeting or a fixed salary as determined
by the Board of Directors. No such payment shall preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
MEETINGS GENERALLY
SECTION 4.01 NOTICE. Whenever notice is required to be given to any
Director or shareholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such Director or
shareholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Notice to
Directors may also be given in accordance with Section 3.09 of Article III
hereof.
SECTION 4.02 WAIVER OF NOTICE. Whenever any notice is required
to be given, a waiver thereof in writing, signed by the
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person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
Except in the case of a special meeting of shareholders and as otherwise
required by law, neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the shareholders, Directors, or Committee of
Directors need be specified in any written waiver of notice of such meeting.
SECTION 4.03 CONFERENCE TELEPHONE MEETINGS. One or more shareholders,
Directors or members of a Committee of Directors may participate in a meeting
of the shareholders, Board, or of a Committee of the Board, by means of
conference telephone or similar communications equipment; provided that all
persons participating in the meeting can hear each other and participate in
discussions thereof. Participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
ARTICLE V
OFFICERS
SECTION 5.01 NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
Corporation shall be chosen by the Board of Directors and shall be a Chairman
of the Board, President, one or more Vice Presidents, a Secretary, a Treasurer,
a Controller and such other officers as may be elected in accordance with the
provisions of Section 5.03 of this Article. One person may hold more than one
office. Officers may be, but need not be, Directors or shareholders of the
Corporation. The Board of Directors may from time to time elect such other
officers as it deems necessary or appropriate, who shall exercise such powers
and perform such duties as are provided in these Bylaws and as the Board of
Directors may from time to time determine.
SECTION 5.02 ELECTION, TERM OF OFFICE AND REMOVAL. The officers of the
Corporation shall be elected annually by the Board of Directors, and each such
officer shall hold his office until his successor shall have been elected and
qualified, or until his earlier death, resignation, or removal. Any officer
may resign at any time upon written notice to the Corporation. Such
resignation shall take effect upon receipt by the Corporation of such notice.
SECTION 5.03 REMOVAL OF OFFICERS. Any officer or agent elected or
appointed by the Board of Directors may be removed at any time, with or without
cause, by the affirmative vote of a majority of the whole Board of Directors.
If any office becomes vacant for any reason, the vacancy may be filled by the
Board of Directors.
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SECTION 5.04 CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall be a duly elected member of the Board of Directors and shall be
the Chief Executive Officer of the Corporation. He shall be directly
responsible to the Board of Directors for the active and general management of
the business of the Corporation. He shall preside at all meetings of the
shareholders and the Board of Directors and shall assist the Board of Directors
in the formulation of policies to be pursued by the executive management of the
Corporation. It shall be his responsibility to see that the policies
established by the Board of Directors are carried into effect. He may sign and
deliver on behalf of the Corporation any deeds, mortgages, bonds, contracts,
powers of attorney, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the Corporation; and he shall perform
all duties incident to the office of Chief Executive Officer of the Corporation
and such other duties as may be prescribed by the Board of Directors from time
to time.
SECTION 5.05 PRESIDENT. The President shall be a member of the Board of
Directors and shall be the Chief Operating Officer of the Corporation, shall
report to the Chairman of the Board, and shall have general supervisory
responsibility over all operations of the Corporation, subject to the control
of the Board of Directors. In the absence or incapacity of the Chairman of the
Board, the President shall perform all the duties of the Chairman of the Board.
He shall execute and deliver, in the name of the Corporation, deeds,
mortgages, bonds, contracts or other instruments, authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
officer or agent of the Corporation; and, in general, subject to supervision by
the Chairman of the Board, the President shall perform all duties incident to
the office of Chief Operating Officer of the Corporation, and such other duties
as from time to time may be assigned to him by the Chairman of the Board or the
Board of Directors.
SECTION 5.06 VICE PRESIDENTS. The Vice Presidents, in the order of
designation by the Board of Directors, shall perform the duties of the
President in his absence and such other duties as may from time to time be
assigned to them by the Board of Directors, the Chairman of the Board or the
President.
SECTION 5.07 SECRETARY. The Secretary shall attend all meetings of the
shareholders, the Board of Directors and Committees thereof, shall record the
minutes of the proceedings thereat and shall keep a current and complete record
thereof. The Secretary shall publish, keep and maintain records and
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reports of the Corporation as required by law, shall be the custodian of the
seal of the Corporation and see that it is affixed to all documents to be
executed on behalf of the Corporation under its seal. The Secretary also shall
perform all duties incident to the office of Secretary and such other duties as
may from time to time be assigned to him by the Board of Directors, the
Chairman of the Board or the President. Each Assistant Secretary shall have
such powers and perform such duties as the Board of Directors, the Chairman of
the Board, or the President may from time to time prescribe.
SECTION 5.08 TREASURER. The Treasurer shall be the Chief Financial
Officer of the Corporation unless the Board of Directors shall designate
another Chief Financial Officer. The Treasurer shall have responsibility for
the proper care and custody of all corporate funds and securities; shall keep
full, accurate and complete records, receipts and disbursements of the
Corporation; and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, shall keep and
maintain proper vouchers for all disbursements, shall render upon request a
report to the Board of Directors of the financial condition of the Corporation,
and shall perform such other duties as the Board of Directors may prescribe.
In the absence of a Controller, the Treasurer shall be responsible for the
performance of all the duties of the Controller.
SECTION 5.09 CONTROLLER. The Controller shall be the Chief Accounting
Officer of the Corporation and cause to be kept full and accurate books and
accounts of all assets, liabilities and transactions of the Corporation. The
Controller shall establish and administer an adequate plan for the financial
control of operations, including systems and procedures required to properly
maintain internal controls on all financial transactions of the Corporation.
The Controller shall cause to be prepared statements of the financial condition
of the Corporation and profit and loss statements covering the operations of
the Corporation and such additional financial statements, if any, as the
Chairman of the Board, the President, the Treasurer or the Board of Directors
from time to time shall require. The Controller shall work under the direct
supervision of the Treasurer and also shall perform such other duties as may be
assigned to him by the Board of Directors, the Chairman of the Board or the
President.
SECTION 5.10 ASSISTANT OFFICERS. The Board of Directors may appoint one
or more assistant officers. Each assistant officer shall, at the request of or
in the absence or disability of the officer to whom he is an assistant, perform
the duties of
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such officer and shall have such other authority and perform such other duties
as the Board of Directors may prescribe.
SECTION 5.11 BONDS. If required by the Board of Directors, any officer
shall give the Corporation a bond in such form, in such sum, and with such
surety or sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in their possession or under their control belonging to the Corporation.
SECTION 5.12 COMPENSATION. The compensation of the officers of the
Corporation shall be determined from time to time by the Board of Directors.
ARTICLE VI
STOCK
SECTION 6.01 FORM OF STOCK CERTIFICATES AND STOCK TRANSFER AGENTS.
Stock certificates of the Corporation shall be in such form as provided by
statute and approved by the Board of Directors. Unless otherwise determined by
the Board of Directors, the Secretary of the Corporation shall act as transfer
agent and registrar for all classes of authorized stock of the Corporation. The
Board of Directors may appoint and remove persons or entities as transfer agent
or as registrar of any class of securities of the Corporation. The transfer
agent and registrar shall maintain accurate records of issued and outstanding
shares of stock of the Corporation and effect transfers thereof in accordance
with law and these Bylaws.
SECTION 6.02 ISSUANCE. Each shareholder shall be entitled to a
certificate or certificates representing shares of stock of the Corporation
owned of record by him. The stock certificates of the Corporation shall be
numbered and registered in the stock ledger and transfer books of the
Corporation as issued. Certificates shall be signed by the Chairman, President
or a Vice President and by the Secretary, an Assistant Secretary, the Treasurer
or an Assistant Treasurer, and shall bear the corporate seal. Any or all of
the signatures and the corporate seal upon such certificate may be a facsimile,
engraved or printed. In case any officer, transfer agent or registrar who has
signed, or whose facsimile signature has been placed upon, any share
certificate shall have ceased to be such officer, transfer agent or registrar,
the certificate shall be valid and of the same force and effect as if he
continued to be such officer, transfer agent or registrar.
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SECTION 6.03 TRANSFER. Upon surrender to the Corporation or to the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment and authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its stock transfer books. No transfer shall be made which
would be inconsistent with law.
SECTION 6.04 DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, dividends upon the capital stock of the Corporation, may be
declared by the Board of Directors at any regular or special meeting only out
of funds or property lawfully available therefor. Dividends may be paid in
cash, in property, or in shares of the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation and applicable
provisions of law. Before payment of any dividend, the Board of Directors may
establish and set aside out of any funds of the Corporation available for
dividends, such sum or sums as the Board of Directors, in its absolute
discretion, determines proper to meet contingencies, for equalizing dividends,
for repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors determines to be in the best interest of the
Corporation; and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
SECTION 6.05 LOST, STOLEN, MUTILATED OR DESTROYED CERTIFICATES. The Board
of Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the Corporation where
the record owner thereof shall claim that the certificate has been lost,
stolen, mutilated or destroyed, upon the receipt by the Corporation of an
affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, mutilated or destroyed. When authorizing issuance of a
replacement certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
person requesting the replacement certificate to give the Corporation a bond in
such sum as the Board of Directors may direct as indemnity against any claim
that may be made against the Corporation with respect to the replacement of the
certificate alleged to have been lost, stolen or destroyed.
SECTION 6.06 RECORD HOLDER OF SHARES. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
record and beneficial owner of shares to receive dividends, to exercise voting
rights and for all purposes; and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the
part of any other person, even if the Corporation shall have notice thereof.
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SECTION 6.07 DETERMINATION OF RECORD DATE. In order that the Corporation
may determine the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, 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 for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
shall not be more than 60 nor less than 10 days (except as otherwise required
by law) before the date of such meeting or any other action.
If no record date is fixed:
(1) The record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business
of 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.
(2) The record date for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be the day
on which the first written consent is expressed.
(3) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders 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.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
SECTION 7.01 INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN THIRD PARTY
PROCEEDINGS. To the maximum extent not prohibited by law, the Corporation shall
indemnify any person who was or is an "authorized representative" of the
Corporation (which shall mean for purposes of this Article a Director or
officer of the Corporation, or a person serving at the request of the
Corporation as a director, officer, partner or trustee of another corporation,
partnership, joint venture, trust or other business
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enterprise) and who was or is a "party" (which shall include for purposes of
this Article the giving of testimony or similar involvement) or is threatened
to be made a party to any "third party proceeding" (which shall mean for
purposes of this Article any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitration, administrative or
investigative other than an action by or in the right of the Corporation) by
reason of the fact that such person was or is an authorized representative of
the Corporation, against expenses (which shall include for purposes of this
Article attorneys' fees and expenses), judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such third party proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation and, with respect to any criminal third party
proceeding (which could or does lead to a criminal third party proceeding) had
no reasonable cause to believe such conduct was unlawful. The termination of
any third party proceeding by judgment, order, settlement, indictment,
conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that the authorized representative did not act in
good faith and in a manner which such person reasonably believed to be in or
not opposed to the best interests of the Corporation and, with respect to any
criminal third party proceeding, had reasonable cause to believe that such
conduct was unlawful.
SECTION 7.02 INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN CORPORATE
PROCEEDINGS. - The Corporation shall indemnify any person who was or is an
authorized representative of the Corporation and who was or is a party or is
threatened to be made a party to any "corporate proceeding" (which shall mean
for purposes of this Article any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor
or investigative proceeding by the Corporation) by reason of the fact that such
person was or is an authorized representative of the Corporation, against
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of such corporate action if such person acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Corporation; 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, unless and only to the extent that a
court of competent jurisdiction shall determine that, despite the adjudication
of liability but in view of all the circumstances of the case, such authorized
representative is fairly and reasonably entitled to be indemnified to the
extent such court shall order.
SECTION 7.03 MANDATORY INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES. To
the extent that an authorized representative of
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the Corporation has been successful on the merits or otherwise in defense of
any third party proceeding or corporate proceeding or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
actually and reasonably incurred by such person in connection therewith.
Section 7.04 DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Section 7.01, 7.02 or 7.03 of this Article (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 authorized
representative is proper in the circumstances because such person has either
met the applicable standards of conduct set forth in Section 7.01 or 7.02 or
has been successful on the merits or otherwise as set forth in Section 7.03 and
that the amount requested has been actually and reasonably incurred. Such
determination shall be made:
(1) By the Board of Directors by a majority of a quorum consisting of
Directors who were not parties to such third party or corporate
proceeding; or
(2) If such a quorum is not obtainable, or, even if obtainable, a majority
vote of such a quorum so directs, by independent legal counsel in a
written opinion; or
(3) By the shareholders.
SECTION 7.05 ADVANCING EXPENSES. Expenses actually and reasonably
incurred in defending a third party or corporate proceeding shall be paid on
behalf of an authorized representative by the Corporation in advance of the
final disposition of such third party or corporate proceeding as authorized in
the manner provided in Section 7.04 of this Article upon receipt of an
undertaking by or on behalf of the authorized representative to repay such
amount unless it shall ultimately be determined that such person is entitled to
be indemnified by the Corporation as authorized in this Article. The financial
ability of such authorized representative to make such repayment shall not be a
prerequisite to the making of an advance.
SECTION 7.06 EMPLOYEE BENEFIT PLANS. For purposes of this Article, the
Corporation shall be deemed to have requested an authorized representative to
serve an employee benefit plan where the performance by such person of duties
to the Corporation also imposes duties on, or otherwise involves services by,
such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on an authorized representative with respect to an employee
benefit plan pursuant to applicable law shall be deemed "fines"; and action
taken or omitted by such person with respect to an employee benefit plan in the
performance of duties for a purpose reasonably believed to be in the interest
of the partici-
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pants and beneficiaries of the plan shall be deemed to be for a purpose which
is not opposed to the best interests of the Corporation.
SECTION 7.07 SCOPE OF ARTICLE. The indemnification of and advancement of
expenses to authorized representatives, as authorized by this Article, shall
(1) not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
agreement, vote of shareholders or disinterested Directors or otherwise, both
as to action in an official capacity and as to action in another capacity, (2)
continue as to a person who has ceased to be an authorized representative and
(3) inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 7.08 RELIANCE ON PROVISIONS. Each person who shall act as an
authorized representative of the Corporation shall be deemed to be doing so in
reliance upon rights of indemnification provided by this Article.
SECTION 7.09 INSURANCE. The Corporation may but shall not be obligated to
purchase and maintain insurance at its expense on behalf of any person who is
or was an authorized representative against any liability asserted against him
in such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability.
ARTICLE VIII
CERTAIN TRANSACTIONS
SECTION 8.01 TRANSACTIONS WITH DIRECTORS OR OFFICERS. No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other company, partnership,
association or other organization in which one or more of its Directors or
officers are directors or officers or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer
is present at or participates in the meeting of the Board of Directors or
Committee thereof which authorizes the contract or transaction, or solely
because his or their vote is counted for such purpose; if: (1) the material
facts as to his relationship or interest are disclosed to the Board or the
Committee, and the Board or Committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
Directors, even though the disinterested Directors be less than a quorum; or
(2) the material facts as to his relationship or interest are disclosed to the
shareholders entitled to vote therein, and the contract or transaction is
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specifically approved in good faith by vote of the shareholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors or a Committee
thereof or the shareholders. Interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a
Committee which authorizes the contract or transaction without in any way
adversely affecting the validity of the actions taken thereat.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01 CONTRACTS. Except as otherwise provided in these Bylaws, the
Board of Directors may authorize any officer or officers or any agent or agents
to enter into any contract or to execute and deliver any instrument on behalf
of the Corporation and such authority may be general or confined to specific
instances.
SECTION 9.02 CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal", and the state of incorporation of the Corporation. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise by any officer of the Corporation.
SECTION 9.03 CHECKS. All checks, notes, bills of exchange or other orders
in writing shall be signed by such person or persons as the Board of Directors
may from time to time designate.
SECTION 9.04 DEPOSITS. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies, or their depositories as the Board of Directors may approve; and all
such funds may be withdrawn only upon checks or withdrawal requests signed by
such one or more officers or employees as the Board of Directors shall from
time to time determine.
SECTION 9.05 FORM OF RECORDS. The books, accounts and records of the
corporation, except as may be otherwise required by law, may be kept outside of
the state of incorporation, at such place or places as the Board of Directors
may from time to time appoint. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a
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reasonable time. The Corporation shall convert any records so kept upon the
request of any person entitled to inspect the same.
SECTION 9.06 FISCAL YEAR. The fiscal year of the Corporation shall begin
on the first day of September and end on the 31st day of August, unless
otherwise provided by resolution of the Board of Directors.
SECTION 9.07 AMENDMENT OF BYLAWS. These Bylaws may be altered, amended or
repealed or new bylaws may be adopted by the shareholders or by the Board of
Directors, at any regular meeting of the shareholders or of the Board of
Directors or at any special meeting of the shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting.
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