ARTICLES OF INCORPORATION
OF
NICHOLS INSTITUTE FOR ENDOCRINOLOGY
ONE: The name of this corporation is
NICHOLS INSTITUTE FOR ENDOCRINOLOGY.
TWO: The purposes for which this corporation is formed are:
(a) To engage primarily in the specific business of analyzing,
researching, developing, producing, manufacturing and/or distributing
biological materials and/or otherwise providing services and materials
required in analysis of biological materials.
(b) To manufacture, buy, sell, assemble, distribute, and to
otherwise acquire, or to own, hold, use, sell, lease, assign, transfer,
exchange, license or otherwise dispose of, and to invest, trade, deal
in and with goods, wares, merchandise, building materials, supplies and
all other property of every class and description.
(c) To purchase, acquire, own, hold, use, lease, either as
lessor or lessee, rent, sublet, grant, sell, exchange, subdivide,
mortgage, deed in trust, manage, improve, cultivate, develop, maintain,
construct, operate, and generally deal in, any and all real estate,
improved, or unimproved, stores, office buildings, dwelling houses,
boarding houses, apartment houses, hotels, business blocks, garages,
warehouses, manufacturing plants, and other buildings of any kind or
description, real, personal and mixed, and any interest or right
therein, including water and water rights, wheresoever situated, in
California, other states of the United States, the District of
Columbia, territories of the United States and foreign countries.
1
(d) To purchase, acquire, take, hold, own, use and enjoy, and
to sell, lease, transfer, pledge, mortgage, convey, grant, assign or
otherwise dispose of, and generally to invest, trade deal in and with
oil royalties, mineral rights of all kinds, mineral bearing lands and
hydro-carbon products of all kinds, oil, gas and mineral leases, and
all rights and interests therein, and. in general, products of the
earth and deposits, both subsoil and surface, of every nature and
description.
(e) To enter into, make, perform and carry out contracts of
every kind for any lawful purpose without limit as to amount, with any
person, firm, association, or corporation, municipality, county,
parish, state, territory, government (foreign and domestic) or other
municipal or governmental subdivision.
(f) To become a partner (either general or limited or both)
and to enter into agreements of partnership with one or more other
persons or corporations, for the purpose of carrying on any business
whatsoever which this corporation may deem proper or convenient in
connection with any of the purposes herein set forth or otherwise, or
which may be calculated, directly or indirectly, to promote the
interest of this corporation or to enhance the value of its property or
business.
(g) To acquire, by purchase or otherwise, the goodwill,
business, property rights, franchises and assets of every kind, with or
without undertaking, either wholly or in part, the liabilities of any
person, firm, association or corporation; and to acquire any property
or business as a going concern or otherwise (a) by purchase of the
assets thereof wholly or in part; (b) by acquisition of the shares or
any part thereof; or (c) in any manner; and to pay for the same in cash
or in the shares or
2
bonds of other evidences of indebtedness of this corporation, or
otherwise; to hold, maintain and operate, or in any manner dispose of
the whole or any part of the goodwill, business, rights and property so
acquired and to conduct, in any lawful manner, the whole or any part of
any business so acquired; and to exercise all the powers necessary or
convenient in and about the management of such business.
(h) To take, purchase, and otherwise acquire, own, hold, use,
sell, assign, transfer, exchange, lease, mortgage, convey in trust,
pledge, hypothecate, grant licenses in respect of and otherwise dispose
of letters patent of the United States or any foreign country, patent
rights, licenses and privileges, inventions, improvements, and
processes, copyrights, trademarks and trade names, and government,
state, territorial, county and municipal grants and concessions of
every character which this corporation may deem advantageous in the
prosecution of its business or in the maintenance, operation,
development or extension of its properties.
(i) From time to time to apply for, purchase, acquire by
assignment, transfer or otherwise, exercise, carry out, and enjoy any
benefit, right, privilege, prerogative or power conferred by, acquired
under or granted by any statute, ordinance, order, license, power,
authority, franchise, commission, right or privilege which any
government or authority or governmental agency or corporation or other
public body may be empowered to enact, make or grant; to pay for, aid
in, and contribute towards carrying the same into effect; and to
appropriate any of this corporation's shares, bonds and/or assets to
defray costs, charges and expenses thereof.
3
(j) To subscribe or cause to be subscribed for, and to take,
purchase, and otherwise acquire, own, hold, use, sell, assign,
transfer, exchange, distribute and otherwise dispose of, the whole or
any part of the shares of the capital stock, bonds, coupons, mortgages,
deeds of trust, debentures, securities, obligations, evidences of
indebtedness, notes, goodwill, rights, assets and property of any and
every kind, or any part thereof, of any other corporation or
corporations, association or associations, firm or firms, or person or
persons, together with the shares, rights, units or interests in or in
respect of any trust estate, now or hereafter existing, and whether
created by the laws of the State of California or of any other state,
territory or country; and to operate, manage and control such
properties, or any of them, either in the name of such other
corporation or corporations or in the name of this corporation; and
(k) To have and to exercise all the powers conferred by the
laws of the State of California upon corporations formed under the laws
pursuant to and under which this corporation is formed, as such laws
are now in effect or may at any time hereafter be amended.
The foregoing statement of purposes shall be construed as a
statement of both purposes and powers, and the purposes and powers
stated in each clause, except where otherwise expressed, be in nowise
limited or restricted by any reference to or inference from the terms
or provisions of any other clause, but shall be regarded as independent
purposes and powers.
THREE: The County in the State of California where the principal office
for the transaction of the business of this corporation is to be located is Los
Angeles.
4
FOUR: This corporation is authorized to issue an aggregate of Five
Thousand (5,000) shares of Common Stock, all of one class. The aggregate par
value of said shares shall be Fifty Thousand Dollars ($50,000.00) and the par
value of each of said shares shall be Ten Dollars ($10.00).
FIVE: The number of directors of this corporation shall be Three (3).
The names and addresses of the persons who are appointed to act
as the first directors of this corporation are:
Name Address
---- -------
Albert L. Nichols, M.D. 2422 Colt Road
Miraleste, California 90732
Lillian Nichols 2422 Colt Road
Miraleste, California 90732
Albert A. Nichols 953 Holly Road
Inglewood, California
5
IN WITNESS WHEREOF, for the purpose of forming this corporation under
the laws of the State of California, the undersigned, constituting the
incorporators of this corporation, including the persons named hereinabove as
the first directors of this corporation, have executed these Articles of
Incorporation this 9th day of August, 1971.
/s/ Albert L. Nichols, M.D.
---------------------------
Albert L. Nichols, M.D.
/s/ Lillian Nichols
---------------------------
Lillian Nichols
/s/ Albert A. Nichols
---------------------------
Albert A. Nichols
6
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 9th day of August, 1971, before me, the undersigned Notary
Public in and for said County and State, residing therein, duly commissioned and
sworn, personally appeared Albert L. Nichols, M. D., known to me to be the
person whose name is subscribed to the foregoing Articles of Incorporation, and
acknowledged to me that (s)he executed the same.
WITNESS my hand and official seal.
/s/ Harriet M. Spann
---------------------------
Notary Public
Harriet M. Spann
7
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 9th day of August, 1971, before me, the undersigned Notary
Public in and for said County and State, residing therein, duly commissioned and
sworn, personally appeared Lillian Nichols, known to me to be the person whose
name is subscribed to the foregoing Articles of Incorporation, and acknowledged
to me that (s)he executed the same.
WITNESS my hand and official seal.
/s/ Harriet M. Spann
---------------------------
Notary Public
Harriet M. Spann
8
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 9th day of August, 1971, before me, the undersigned Notary
Public in and for said County and State, residing therein, duly commissioned and
sworn, personally appeared Albert A. Nichols, known to me to be the person whose
name is subscribed to the foregoing Articles of Incorporation, and acknowledged
to me that (s)he executed the same.
WITNESS my hand and official seal.
/s/ Harriet M. Spann
---------------------------
Notary Public
Harriet M. Spann
9
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
NICHOLS INSTITUTE FOR ENDOCRINOLOGY
A California corporation
Albert L. Nichols, M.D. and Albert A. Nichols certify:
1. That they are the President and Secretary, respectively, of Nichols
Institute for Endrocrinology, a California corporation (the "Corporation"),
2. That the By-Laws of the Corporation authorize the Directors to
adopt, by unanimous written consent without a meeting, resolutions amending the
Articles of Incorporation; and, therefore, by unanimous written consent without
a meeting, the Directors did adopt the following resolutions amending the
Articles of Incorporation:
WHEREAS, Article Four of the Articles of Incorporation of this
Corporation presently authorizes Five Thousand (5,000) shares of Common
Stock, Ten Dollars ($10.00) par value; and
WHEREAS, this Corporation has issued only Four Thousand One
Hundred (4,100) of said authorized shares; and
WHEREAS, it is deemed in the best interests of this Corporation to
increase the authorized number of shares of stock from Five Thousand
(5,000) to Five Hundred Thousand (500,000) and to change the par value
per share from Ten Dollars ($10.00) to Ten Cents ($0.10); and
WHEREAS, it is deemed in the best interest of this Corporation to
increase the number of outstanding shares by effecting a split of each
outstanding share into One Hundred (100) shares;
10
NOW, THEREFORE, BE IT RESOLVED: that Article Four of the Articles
of Incorporation is hereby amended to read in full as follows:
"This corporation is authorized to issue an aggregate of Five
Hundred Thousand (500,000) shares of Common Stock, all of one
class. The aggregate par value of said shares shall be Fifty
Thousand Dollars ($50,000) and the par value of each of said
shares shall be Ten Cents ($0.10). Upon the amendment of this
article to read as hereinabove set forth, each outstanding share,
Ten Dollars ($10.00) par value is split up and converted into One
Hundred (100) shares, Ten Cents ($0.10) par value."
3. That the stockholders of this Corporation have adopted the foregoing
resolutions by written consent; that the wording of each of said resolutions is
the same as that set forth in Paragraph 2, hereinabove.
4. That the total number of shares represented by said written consent
of shareholders is Four Thousand One Hundred (4,100), and that the total number
of shares entitled to vote on or consent to the amendment is Four Thousand One
Hundred (4,100).
/s/ Albert L. Nichols, M.D.
----------------------------------
Albert L. Nichols, M.D., President
/s/ Albert A. Nichols
----------------------------------
Albert A. Nichols, Secretary
11
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing certificate are true and correct. Executed at
San Pedro, California, on this 1st day of October, 1974.
/s/ Albert L. Nichols, M.D.
----------------------------
Albert L. Nichols, M.D.
/s/ Albert A. Nichols
----------------------------
Albert A. Nichols
12
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
NICHOLS INSTITUTE FOR ENDOCRINOLOGY
A California corporation
Albert L. Nichols, M.D. and Albert A. Nichols certify:
1. That they are the President and Secretary, respectively, of Nichols
Institute for Endocrinology, a California corporation (the "Corporation"),
2. That the By-Laws of the Corporation authorize the Directors to
adopt, by unanimous written consent without a meeting, resolutions amending the
Articles of Incorporation; and, therefore, by unanimous written consent without
a meeting, the Directors did adopt the following resolutions amending the
Articles of Incorporation:
I
"RESOLVED, that Article One of the Articles of Incorporation of
this Corporation shall be amended to read in full as follows:
'The name of this Corporation is:
NICHOLS INSTITUTE'"
II
"WHEREAS, Article Four of the Articles of Incorporation of this
Corporation presently authorizes Five Hundred Thousand (500,000) shares
of common stock, Ten Cent ($.10) par value; and
WHEREAS, it is deemed in the best interests of this Corporation to
increase the authorized number of shares of stock
13
from Five Hundred Thousand (500,000) shares, Ten Cent ($.10) par value,
to Five Million (5,000,000) shares of common stock, Ten Cent ($.10) par
value; and
WHEREAS, it is deemed in the best interests of this Corporation to
leave each of the issued and outstanding shares of the Corporation
unaffected by this change in capitalization;
NOW, THEREFORE, BE IT RESOLVED, that Article Four of the Articles
of Incorporation of this Corporation is hereby amended to read in full
as follows:
'This Corporation is authorized to issue an aggregate of Five
Million (5,000,000) shares of Common Stock, all of one class. The
aggregate par value of said shares shall be Five Hundred Thousand
Dollars ($500,000) and the par value of each of said shares shall be
Ten Cents ($.10).'"
III
"RESOLVED, that Article Five of the Articles of Incorporation of
this Corporation be amended to read in full as follows:
'(a) The number of directors of this Corporation shall be no less
than five (5) nor more than eight (8). Within said range, the board of
directors shall have the power to fix the exact number of directors;
provided, however, that until the board of directors acts to fix such
number, the number of directors shall be five (5).
(b) The names and addresses of the persons who are appointed to
act as the first directors of this corporation are:
Name Address
---- -------
Albert L. Nichols, M.D. 2422 Colt Road
Miraleste, California 90732
Lillian Nichols 2422 Colt Road
Miraleste, California 90732
Albert A. Nichols 953 Holly Road
Inglewood, California 90301
14
3. That the stockholders of this Corporation have adopted the foregoing
resolutions by written consent; that the wording of each of said resolutions is
the same as that set forth in Paragraph 2, hereinabove.
4. That the total number of shares represented by said written consent
of shareholders is Four Hundred Forty Five Thousand Two Hundred Sixty (445,260),
and that the total number of shares entitled to vote on or consent to the
amendment is Four Hundred Forty Five Thousand Two Hundred Sixty (445,260).
/s/ Albert L. Nichols, M.D.
----------------------------------
Albert L. Nichols, M.D., President
/s/ Albert A. Nichols
----------------------------------
Albert A. Nichols, Secretary
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing certificate are true and correct. Executed at
San Pedro, California, on this 30th day of January, 1976.
/s/ Albert L. Nichols, M.D.
----------------------------------
Albert L. Nichols, M.D.,
/s/ Albert A. Nichols
----------------------------------
Albert A. Nichols,
15
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
NICHOLS INSTITUTE
A California Corporation
Albert L. Nichols, M.D. and Victor Rosenblatt certify that:
1. They are the duly elected and acting President and Assistant
Secretary respectively, of said corporation.
2. The Articles of Incorporation of said corporation shall be amended
to read in full as follows:
Four: The total number of shares which this corporation is
authorized to issue is ten million (10,000,000) all of the same
class designated "Common Stock" ten cent ($.10) par value per share.
Upon the amendment of this Article Four as set forth above, each
outstanding share of Common Stock is divided into two shares of
Common Stock ten cent ($.10) par value per share.
3. The foregoing amendment has been approved by the Board of Directors
of said corporation.
4. The foregoing amendment was one which may be adopted with approval
by the Board of Directors alone under Corporations Code Section 902(c) because
the corporation has no more than one class of shares outstanding and the
amendment effects only a stock split and an increase in authorized shares in
proportion thereto.
IN WITNESS WHEREOF, the undersigned have executed this certificate on
July 5, 1978.
/s/ Albert L. Nichols, M.D.
----------------------------------
Albert L. Nichols, M.D.
President
/s/ Victor Rosenblatt
----------------------------------
Victor Rosenblatt
Assistant Secretary
16
AGREEMENT OF MERGER
BETWEEN
NICHOLS INSTITUTE
AND
NICHOLS INSTITUTE MERGING CORPORATION NO. 1
This Agreement of Merger is entered into between NICHOLS INSTITUTE, a
California corporation (herein "Surviving Corporation"), and NICHOLS INSTITUTE
MERGING CORPORATION NO. 1, a California corporation (herein "Merging
Corporation").
1. Merging Corporation shall be merged into Surviving Corporation.
2. Each outstanding share of Merging Corporation shall be converted
into one share of Surviving Corporation.
3. Each share of Surviving Corporation outstanding immediately prior to
the effectiveness of the merger shall be converted into 1 share of the Common
Stock, $.10 par value, of Nichols Institute, a Delaware corporation and the
parent company of Merging Corporation.
4. Upon the effectiveness of the merger Article One of the Articles of
Incorporation of Surviving Corporation will be amended to read as follows:
"The name of this corporation is:
'NICHOLS INSTITUTE LABORATORIES.'"
5. Merging Corporation shall from time to time, as and when requested
by Surviving Corporation, execute and deliver all such documents and instruments
and take all such action necessary or desirable to evidence or carry out this
merger.
6. The effect of the merger and the effective date of the merger are as
prescribed by law.
17
IN WITNESS WHEREOF, the parties have executed this Agreement.
NICHOLS INSTITUTE
By /s/ Donald S. Mullins
-------------------------
Executive Vice President
By /s/ Marilyn Hague
-------------------------
Assistant Secretary
NICHOLS INSTITUTE MERGING
CORPORATION NO. 1
By /s/ Donald S. Mullins
-------------------------
Executive Vice President
By /s/ Marilyn Hague
-------------------------
Assistant Secretary
18
CERTIFICATE OF MERGER
OF
NICHOLS INSTITUTE,
a California Corporation
Donald S. Mullins and Marilyn Hague certify that:
1. They are the duly elected and acting Executive Vice-President and
Assistant Secretary, respectively, of said corporation (hereinafter called "this
corporation").
2. This certificate is attached to the Agreement of Merger dated as of
August 7, 1981, providing for the merger of this corporation with Nichols
Institute Merging Corporation No. 1, a California corporation.
3. The Agreement of Merger in the form attached hereto has been
approved by the board of directors of this corporation.
4. The principal terms of the Agreement of Merger in the form attached
hereto were approved by this corporation by the vote of a number of shares of
each class which equaled or exceeded the vote required, such classes, the total
number of outstanding shares of each class entitled to vote on the merger and
the percentage vote required of each class being as follows:
Total Number
of Outstanding
Shares Entitled
Name of Class to Vote Vote Required
- ------------- --------------- -------------
Common 1,084,051 majority
Dated: August 7, 1981.
/s/ Donald S. Mullins
---------------------------
Donald S. Mullins
Executive Vice-President
/s/ Marilyn Hague
---------------------------
Marilyn Hague
Assistant Secretary
19
The undersigned, Donald S. Mullins and Marilyn Hague, the Executive
Vice-President and Assistant Secretary, respectively, of Nichols Institute, each
declares under penalty of perjury that the matters set out in the foregoing
Certificate are true of his and her own knowledge.
Executed at Los Angeles, California on August 7, 1981.
/s/ Donald S. Mullins
---------------------------
Donald S. Mullins
Executive Vice-President
/s/ Marilyn Hague
---------------------------
Marilyn Hague
Assistant Secretary
20
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
DONALD S. MULLINS AND MARILYN HAGUE certify that:
1. They are the Executive Vice-President and the Assistant Secretary,
respectively, of NICHOLS INSTITUTE LABORATORIES, a California corporation.
2. Article ONE of the Articles of Incorporation of this corporation is
amended to read as follows:
"The name of this corporation is NICHOLS INSTITUTE
REFERENCE LABORATORIES."
3. The foregoing Amendment of Articles of Incorporation has been duly
approved by the Board of Directors.
4. The foregoing Amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the Corporations Code. The total number of outstanding shares of the corporation
is 1,000. The number of shares voting in favor of the Amendment equaled or
exceeded the vote required.
The percentage vote required was more than 50%.
/s/ Donald S. Mullins
---------------------------
Donald S. Mullins
Executive Vice-President
/s/ Marilyn Hague
---------------------------
Marilyn Hague
Assistant Secretary
21
The undersigned declare under penalty of perjury that the matters set
forth in the foregoing certificate are true of their own knowledge. Executed at
San Juan Capistrano, California on June 23, 1982.
/s/ Donald S. Mullins
---------------------------
Donald S. Mullins
/s/ Marilyn Hague
---------------------------
Marilyn Hague
22
A 456526
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
NICHOLS INSTITUTE REFERENCE LABORATORIES
ENDORSED
FILED
in the office of the Secretary
of State of the State of
California
JAN 26 1995
To The Secretary of State
State of California BILL JONES
SECRETARY OF STATE
Pursuant to the General Corporation Law of the State of California, the
undersigned officers of the corporation hereinafter named do hereby certify as
follows:
1. The name of the corporation is Nichols Institute Reference Laboratories.
2. Article One of the corporation's Articles of Incorporation is hereby amended
so as to read as follows:
"The name of this corporation is Corning Nichols Institute."
3. The amendment herein provided for has been approved by the corporation's
Board of Directors.
4. The amendment herein provided for was approved by the required written
consent of the corporation's shareholders in accordance with the provisions of
Section 902 of the General Corporation Law. The corporation's total number of
shares of which were outstanding and entitled to vote or to furnish written
consent with respect to the amendment herein provided for at the time of the
approval thereof is 1,000, all of which are of one class. The percentage vote of
the number of the aforesaid outstanding shares which is required to vote or
furnish written consent in favor of the amendment herein provided for is 50.1%.
The number of the aforesaid outstanding shares which voted or furnished a
written
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consent in favor of the amendment herein provided for is 100%, and the said
number exceeded the percentage of the vote or written consent required to
approve said amendment.
Signed on January 3, 1996.
/s/ James D. Chambers
---------------------------------
James D. Chambers, Vice President
/s/ Leo C. Farrenkopf, Jr.
---------------------------------
Leo C. Farrenkopf, Jr., Secretary
On this 3rd day of January, 1995, in the Town of Teterboro, in the
State of New Jersey, each of the undersigned does hereby declare under the
penalty of perjury that he signed the foregoing Certificate of Amendment of
Articles of Incorporation in the official capacity set forth beneath his
signature, and that the statements set forth in said certificate are true of his
own knowledge.
/s/ James D. Chambers
---------------------------------
James D. Chambers, Vice President
/s/ Leo C. Farrenkopf, Jr.
---------------------------------
Leo C. Farrenkopf, Jr., Secretary
24
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CORNING NICHOLS INSTITUTE
We, Douglas M. VanOort, the Vice President, and Leo C. Farrenkopf, Jr.,
the Secretary of Corning Nichols Institute (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of California,
DO HEREBY CERTIFY:
1. That we are the Vice President and Secretary, respectively, of the
Corporation.
2. That an amendment to the Articles of Incorporation of the
Corporation has been duly approved by the Board of Directors of the Corporation.
3. The amendment so approved by the Board of Directors is as follows:
Article ONE of the Articles of Incorporation is hereby deleted in
its entirety and the following substituted therefor:
"ONE: The name of this Corporation is CORNING NICHOLS INSTITUTE
INC."
Article SIX of the Articles of Incorporation is hereby deleted in its
entirety and the following substituted therefor:
"SIX: (a) The liability of the Directors of the Corporation for
monetary damages shall be eliminated to the fullest extent permissible
under California law; provided, that this provision shall not eliminate
or limit the liability of a Director (i) for acts or omissions that
involve intentional misconduct or a knowing and culpable violation of
law, (ii) for acts or omissions that a Director believes to be contrary
to the best interests of the Corporation or its shareholders or that
involve the absence of good faith on the part of the Director, (iii)
for any transaction from which a Director derived an improper personal
benefit, (iv) for acts or omissions that show a reckless disregard for
the Director's duty to the Corporation or its shareholders in
circumstances in which the Director was aware, or should have been
aware, in the ordinary course of performing a director's duties, of a
risk of serious injury to the Corporation or its shareholders, (v) for
acts or omissions that constitute an unexcused pattern of inattention
that amounts to an abdication of the Director's duty to the
25
Corporation or its shareholders, and (vi) under Section 310 or Section
316 of the California General Corporation Law.
(b) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a
director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action either in an
official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
General Corporation Law of the State of California, as the same exists
or may hereafter be amended, against all expenses, liability and loss
(including attorneys' fees, judgments, fines, excise taxes pursuant to
the Employee Retirement Income Security Act of 1974, as amended, or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person 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 his or her heirs,
executors and administrators; provided, however, that the Corporation
shall indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to be indemnified conferred in
this Article Six shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however,
that the payment of such expenses incurred by the director or officer
in his or her capacity as a director or officer (and not in any other
capacity in which service was or is to be rendered by such person while
a director or officer, including, without limitation, service to an
employee benefit plan), in advance of the final disposition of
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this
Article or otherwise. The Corporation may, by action of its Directors,
provide indemnification to employees and agents of the Corporation with
the same scope and effect as the foregoing indemnification of directors
and officers.
(c) The indemnification provided by this Article Six shall not
limit or exclude any rights, indemnities or limitations of liability to
which any person may be entitled, whether as a matter of law, under the
By-Laws of the Corporation, by agreement, vote of the stockholders or
disinterested directors of the Corporation or otherwise.
(d) If a claim under paragraph (b) of this Article Six is not
paid in full by the Corporation within sixty (60) days after a written
claim has been received by the
26
Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the General
Corporation Law of the State of California for the Corporation to
indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board, independent legal counsel, or
its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the General Corporation Law of the
State of California, nor an actual determination by the Corporation
(including its Board, independent legal counsel, or its stockholders)
that the claimant has not met such applicable standard of conduct,
shall create a presumption that the claimant has not met the applicable
standard of conduct.
(e) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any such 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 General
Corporation Law of the State of California."
4. The amendment herein provided for was approved by the shareholders
at a duly convened meeting. The Corporation's total number of shares which were
outstanding and entitled to vote on said amendment is 1,000, all of which are of
one class. The percentage vote of the number of the aforesaid outstanding shares
which is required to vote in favor of the amendment is 50.1%. The number of the
aforesaid outstanding shares which voted in favor of the amendment is 100%, and
said number exceeded the percentage of the vote required to approve said
amendment.
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IN WITNESS WHEREOF, each of the undersigned declares under penalty of perjury
that the statements contained in the foregoing certificate are true of their own
knowledge, on this 18th day of September, 1995 in the Town of Teterboro, State
of New Jersey.
/s/ Douglas M. VanOort
--------------------------
Douglas M. VanOort
Vice President
/s/ Leo C. Farrenkopf, Jr.
--------------------------
Leo C. Farrenkopf, Jr.
Secretary
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