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EXHIBIT 3
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AMENDED AND RESTATED
BY-LAWS OF
MICHAEL ANTHONY JEWELERS, INC.
November 15, 1993
AS AMENDED ON AUGUST 25, 1995
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The Registered
office of the Corporation within the State of Delaware shall
be established and maintained in the City of Wilmington,
County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also
have an office or offices other than said registered office at
such place or places, either within or without the State of
Delaware, as the Board of Directors shall from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the
stockholders for the election of directors or for any other
purpose shall be held at any such place, either within or
without the State of Delaware, as shall be designated from
time to time by the Board of Directors and stated in the
notice of meeting or in a duly executed waiver thereof.
SECTION 2. ANNUAL MEETING. The annual meeting of
stockholders shall be held on such date and at such time as
shall be designated from time to time by the Board of
Directors and stated in the notice of meeting or in a duly
executed waiver thereof. At such annual meeting, the
stockholders shall elect,
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by a plurality vote, a Board of Directors and transact such
other business as may properly be brought before the meeting.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise
expressly required by statute, written notice of each annual
and special meeting of stockholders stating the date, place
and hour of the meeting, and in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall
be given to each stockholder of record entitled to vote
thereat, not less than ten or more than sixty days before the
date of the meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes
stated in the notice. Notice shall be given personally or by
mail, and if by mail, shall be sent in a postage prepaid
envelope, addressed to the stockholder at his address as it
appears on the records of the Corporation. Notice by mail
shall be deemed given at the time when the same shall be
deposited in the Unites States mail, postage prepaid. Notice
of any meeting shall not be required to be given to any
person who attends such meeting, except when such person
attends the meeting in person or by proxy for the express
purpose of objecting, at the beginning of the meeting, to the
transaction or any business because the meeting is not
lawfully called or convened, or who, either before or after
the meeting, shall submit a signed written waiver of notice,
in person or by proxy. Neither the business to be transacted
at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of
notice.
SECTION 4. LIST OF STOCKHOLDERS. The officer who has
charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing
the address of and the number of shares registered in the name
of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within
the city, town or village where the meeting is to be held,
which place shall be specified in the notice of meeting, or,
if not specified, at the place where the meeting is to be
held. The list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger
shall be the only evidence as to the identity of the
stockholders entitled to examine the stock ledger, the list
required by this section or the books of the Corporation, or
to vote at any meeting of stockholders.
SECTION 5. QUORUM, ADJOURNMENTS. The holders of a
majority of the voting power of the issued and outstanding
stock
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of the corporation entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum for
the transaction of business at all meetings of stockholders,
except as otherwise provided by statute or by the Certificate
of Incorporation. If, however, such quorum shall not be
present or represented by proxy at any meeting of
stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have the
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 by proxy. At such adjourned meeting
at which a quorum shall be present or represented by proxy,
any business may be transacted which might have been
transacted at the meeting as originally called. If the
adjournment is for more than thirty days, or, if after
adjournment a new record date is set, a notice of the
adjourned meeting shall be give to each stockholder of record
entitled to vote at the meeting.
SECTION 6. ORGANIZATION. At each meeting of
stockholders, the Chairman of the Board, if one shall have
been elected, or, in his absence or if one shall not have been
elected, the President shall act as Chairman of the meeting.
The Secretary or, in his absence or inability to act, the
person whom the Chairman of the meeting shall appoint
Secretary of the meeting, shall act as Secretary of the
meeting and keep the minutes thereof.
SECTION 7. ORDER OF BUSINESS. The order of business
at all meetings of the stockholders shall be as determined by
the chairman of the meeting.
SECTION 8. VOTING. Except as otherwise provided by
statute or the Certificate of Incorporation, each stockholder
of the Corporation shall be entitled at each meeting of
stockholders to one vote for each share of capital stock of
the corporation standing in his name on the record of
stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of
Section 7 of Article V of these By-Laws as the record date for
the determination of the stockholders who shall be entitled to
notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed,
then at the close of business on the day next preceding the
day on which notice thereof shall be given, or, if notice is
waived, at the close of business on the date next preceding
the day on which such meeting is held.
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Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act
for him by a proxy signed by such stockholder or his attorney-
in-fact, but no proxy shall be voted after three years from
its date, unless the proxy provides for a longer period. Any
such proxy shall be delivered to the Secretary of the meeting
at or prior to the time designated in the order of business
for so delivering such proxies. When a quorum is present at
any meeting, the vote of the holders of a majority of the
voting power of the issued and outstanding stock of the
Corporation entitled to vote thereon, present in person or
represented by proxy, shall decide any question brought before
such meeting, unless the question is one upon which by express
provision of statute or of the Certificate of Incorporation or
of these By-Laws, a different vote is required, in which case
such express provision shall govern and control the decision
of such question.
Unless required by statute, or determined by the Chairman of
the meeting to be advisable, the vote on any question need not
be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his proxy, if there be
such proxy, and shall state the number of shares voted.
SECTION 9. INSPECTORS. The Board of Directors may, in
advance of any meeting of stockholders, appoint one or more
inspectors to act at such meeting or any adjournment thereof.
If any of the inspectors so appointed shall fail to appear or
act, the Chairman of the meeting shall, or if inspectors shall
not have been appointed the Chairman of the meeting may,
appoint one or more inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of
shares of capital stock of the Corporation outstanding and the
voting power of each, the number of shares represented at the
meeting, the existence of a quorum, the validity and effect of
proxies, and shall receive votes, ballots or consents, hear
and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the results, and do such
acts as are proper to conduct the election or vote with
fairness of all stockholders. On request of the Chairman of
the meeting, the inspectors shall make a report in writing of
any challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No director
or candidate for the office of Director shall act as an
inspector of an election of directors. Inspectors need not be
stockholders.
SECTION 10. ACTION BY CONSENT. Whenever the vote of
stockholders at a meeting thereof is required or permitted to
be
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taken for or in connection with any corporate action, by
any provision of statute or of the Certificate of
Incorporation or of these By-Laws, the meeting and vote of
stockholders may be dispensed with, and the action taken
without such meeting and 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 or take
such action at a meeting at which all shares of stock of the
Corporation entitled to vote thereon are present and voted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs
of the Corporation shall be managed by or under the direction
of the Board of Directors. The Board of Directors may
exercise all such authority and powers of the Corporation and
do all such lawful acts and things as are not by statute or
the Certificate of Incorporation directed or required to be
exercised or done by the Stockholders.
SECTION 2. PLACE OF MEETINGS. Meetings of the Board
of Directors shall be held at such place or places, within or
without the State of Delaware, as the Board of Directors may
from time to time determine or as shall be specified in the
notice of any such meeting.
SECTION 3. ANNUAL MEETING. The Board of Directors
shall meet for the purpose of organization, the election of
officers and the transaction of other business, as soon as
practicable after each annual meeting of stockholders, on the
same day and at such place as where such annual meeting shall
be held. Notice of such meeting need not be given. In the
event such annual meeting is not so held, the annual meeting
of the Board of Directors may be held at such other time and
place (within or without the State of Delaware) as shall be
specified in a notice thereof given as hereinafter provided in
Section 7 of this Article III.
SECTION 4. REGULAR MEETINGS. Regular meetings of the
Board of Directors shall be held at such time and place as the
Board of Directors may fix. If any day fixed for a regular
meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise
be held on that day shall be held at the same hour on the next
succeeding business day. Notice of regular meetings of the
Board of
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Directors need not be given except as otherwise required by
statute or these By-Laws.
SECTION 5. SPECIAL MEETINGS. Special meetings of the
Board of Directors may be called by the Chairman of the Board,
if one shall have been elected, or by two or more directors of
the Corporation, or by the President.
SECTION 6. NOTICE OF MEETINGS. Notice of each
special meeting of the Board of Directors (and of each regular
meeting for which notice shall be required) shall be given by
the Secretary as hereinafter provided in Section 7, in which
notice shall be stated the time and place of the meeting.
Except as otherwise required by these By-Laws, such notice
need not state the purposes of such meeting. Notice of each
such meeting shall be mailed, postage prepaid, to each
director, addressed to him at such place as is duly recorded
within the records of the Corporation, by telegraph, cable,
telex, telecopier or other similar means, or be delivered to
him personally or be given to him by telephone or other
similar means, at least twenty-four hours before the time at
which such meeting is to be held. Notice of any such meeting
need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of notice or who
shall attend such meeting, except when he shall attend for the
express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not
lawfully called or convened.
SECTION 7. QUORUM AND MANNER OF ACTING.
(a) A majority of the entire Board of Directors shall
constitute a quorum for the transaction of business at any
meeting of the Board of Directors, and, except as otherwise
expressly required by statute or the Certificate of
Incorporation of these By-Laws (including the provisions of
subparagraph (b) of this Section 7), the act of a majority of
the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. In the
absence of a quorum at any meeting of the Board of Directors,
a majority of the directors present thereat may adjourn such
meeting to another place and time. Notice of the time and
place of any such adjourned meeting shall be given to all of
the directors unless such time and place were announced at the
meeting at which the adjournment was taken, in which case
such notice shall only be given to the directors who were not
present thereat. At any adjourned meeting at which a quorum
is present, any business may be transacted which might have
been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual
directors shall have no authority to act except through the
Board.
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(b) The affirmative vote or written consent of not less than
seventy-five percent (75%) of the voting power of the Board of Directors of the
Corporation at a meeting called for such purpose at which the Directors shall
vote, or in an action by written consent, as the case may be, shall be
necessary:
(i) to elect the Corporation's Chief Executive Officer;
(ii) to approve the merger or consolidation of the
Corporation with or into another corporation, partnership or other entity;
(iii) to dissolve and/or liquidate the Corporation;
(iv) to approve the acquisition of a business or an amount
of assets involving a purchase price, whether in cash, in stock or in kind,
having a total value in excess of Two Million Dollars ($2,000,000);
(v) to approve the sale of assets of the Corporation not
in the normal course of business having a book value of more than Two Million
Dollars ($2,000,000) as reflected in the Corporation's most recent audited
balance sheet;
(vi) to approve any other transaction which is subject to
Section 203 of the Delaware General Corporation Law (as in effect on the date
of these Amended and Restated By-Laws);
(vii) to approve the issuance of additional equity securities
of the Corporation (other than (A) the grant of options by the Compensation
Committee of the Board of Directors pursuant to the Corporation's 1993
Long-Term Incentive Plan or any successor thereto or amendment thereof or the
issuance of shares of capital stock of the Corporation pursuant to the exercise
of such stock options or (B) the issuance of warrants to third parties or the
issuance of shares of capital stock of the Corporation upon exercise of such
warrants);
(viii) to approve transactions among the Corporation and one
or more of Michael W. Paolercio and Anthony Paolercio, Jr., or any "affiliates"
(as that term is defined in Rule 144 under the Securities Act of 1933, as
amended) of the Corporation, involving aggregate consideration in excess of One
Hundred Thousand Dollars ($100,000), except for the renewal, extension,
modification or amendment of any of the Corporation's existing leases for real
property with Michael Anthony Company, a New York general partnership
("MAC");
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(ix) to approve amendments to the Corporation's By-
Laws and/or Certificate of Incorporation; or
(x) to cause the Corporation to enter into any line
of business not already engaged in by the Corporation.
SECTION 8. ORGANIZATION. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the absence
of the Chairman of the Board or if one shall not have been elected, the
President (or, in his absence, another director chosen by a majority of the
directors present) shall act as Chairman of the meeting and preside thereat.
The Secretary or, in his absence, any person appointed by the Chairman of the
meeting shall act as Secretary of the meeting and keep the minutes thereof.
SECTION 9. RESIGNATIONS. Any director of the corporation may resign
at any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein, or, if
the time when it shall become effective shall not be specified therein,
immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 10. COMPENSATION. The Board of Directors shall have authority
to fix the compensation, including fees and reimbursement of expenses, of
directors for services to the corporation in any capacity.
SECTION 11. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of two or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, or in these By-Laws, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee
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shall have the power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporations property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the By-Laws of the corporation; and, unless the resolution, these By-Laws or
the Certificate of Incorporation expressly so provide, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock.
SECTION 12. ACTION BY CONSENT. Unless restricted by the Certificate
of Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all
members of the Board of Directors or such committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee,
as the case may be.
SECTION 13. TELEPHONIC MEETING. Unless restricted by the Certificate
of Incorporation, any, one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other participate. Participation by such means shall constitute presence
in person at a meeting.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the corporation
shall be elected by the Board of Directors and shall include the President, one
or more Vice-Presidents, the Secretary and the Treasurer. If the Board of
Directors wishes, it may also elect as an officer of the Corporation a Chairman
of the Board and may elect other officers (including one or more Assistant
Secretaries and Assistant Treasurers) as may be necessary or desirable for the
business of the Corporation. Any two or more offices may be held by the same
person, except that the same person shall not simultaneously hold the offices
of President and Secretary. No officer except the Chairman of the Board need
be a director. Each officer shall hold office until his successor shall have
been duly elected and shall have
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qualified, or until his death, or until he shall have
resigned or have been removed, as hereinafter provided in
these By-Laws.
SECTION 2. RESIGNATIONS. Any officer of the
Corporation may resign at any time by giving written notice of
his resignation to the Corporation. Any such resignation
shall take effect at the time specified therein or, if the
time when it shall become effective shall not be specified
therein, immediately upon receipt. Unless otherwise specified
therein, the acceptance of any such resignation shall not be
necessary to make it effective.
SECTION 3. REMOVAL. Any officer of the Corporation
may be removed, either with or without cause, at any time, by
the Board of Directors at any meeting thereof.
SECTION 4. CHAIRMAN OF THE BOARD. The Chairman of
the Board, if one shall have been elected, shall be a member
of the Board, an officer of the Corporation and, if present,
shall preside at each meeting of the Board of Directors or the
stockholders. He shall advise and counsel with the President,
and in his absence with, other executives of the Corporation,
and shall perform such other duties as may from time to time
be assigned to him by the Board of Directors.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Chief
Executive Officer, if one shall have been elected, shall be
the chief executive officer of the Corporation. He shall, in
the absence of the Chairman of the Board or if a Chairman of
the Board shall not have been elected, preside at each meeting
of the Board of Directors or the Stockholders. He shall
perform all duties incident to the office of Chief Executive
Officer and such other duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 6. THE PRESIDENT. The President shall be the
Chief Executive Officer of the Corporation. He shall, in the
absence of the Chairman of the Board or if a Chairman of the
Board shall not have been elected, preside at each meeting of
the Board of Directors or the Stockholders. He shall perform
all duties incident to the office of President and Chief
Executive Officer and such other duties as may from time to
time be assigned to him by the Board of Directors.
SECTION 7. VICE-PRESIDENT. Each Vice-President shall
perform all such duties as from time to time may be assigned
to him by the Board of Directors or the President. At the
request of the President or in his absence or in the event of
his inability or refusal to act, the Vice-President, or if
there
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shall be more than one, the Vice-Presidents in the order
determined by the Board of Directors (of if there be no such
determination, then the Vice-Presidents in the order of their
election), shall perform the duties of the President, and,
when so acting, shall have the powers of and be subject to the
restrictions placed upon the President in respect to the
performance of such duties.
SECTION 8. CHIEF FINANCIAL OFFICER. The Chief
Financial Officer shall have general power, authority and
responsibility for all financial matters pertaining to the
Corporation. The Chief Financial Officer shall supervise the
duties of the Treasurer of the Corporation and shall perform
all duties incident to the office of Chief Financial Officer
and such other duties as may from time to time be assigned to
him by the Board of Directors.
SECTION 9. TREASURER. The Treasurer shall:
(a) have charge and custody of and be responsible for,
all the funds and securities of the Corporation;
(b) keep full and accurate amounts of receipts and
disbursements in books belonging to the Corporation;
(c) deposit all monies and other valuables to the credit
of the Corporation in such depositories as may be designated
by the Board of Directors or pursuant to its direction;
(d) receive, and give receipts for, monies due and
payable to the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise
the investment of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board
of Directors may require, an account of the financial
condition of the corporation; and
(g) in general, perform all duties incident to the office
of Treasurer and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 10. SECRETARY. The Secretary shall:
(a) keep or cause to be kept in one or more books
provided for the purpose, the minutes of all meetings of the
Board of Directors, the committees of the Board of Directors
and the Stockholders;
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(b) see that all notices are duly given in accordance
with the provision of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the
corporation and affix and attest the seal to all certificates
for shares of the Corporation (unless the seal of the
Corporation on such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal of all
other documents to be executed on behalf of the Corporation
under its seal;
(d) see that the books, reports, statements, certificates
and other documents and records required by law to be kept and
filed are properly kept and filed; and
(e) in general, perform all duties incident to the office
of Secretary and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 11. THE ASSISTANT TREASURER. The Assistant
Treasurer, of if there shall be one or more than-one, the
Assistant Treasurers in the order determined by the Board of
Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the
Treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Treasurer
and shall perform such other duties as from time to time may
be assigned by the Board of Directors.
SECTION 12. THE ASSISTANT SECRETARY. The Assistant
Secretary, or if there shall be one or more than one, the
Assistant Secretaries in the order determined by the Board of
Directors (of if there shall be no such determination, then in
the order of their election), shall in the absence of the
Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary
and shall perform such other duties as from time to time may
be assigned by the Board of Directors.
SECTION 13. OFFICERS, BONDS OR OTHER SECURITY. If
required by the Board of Directors, any officer of the
corporation shall give a bond or other security for the
faithful performance of his duties, in such amount and with
such surety as the Board of Directors may require.
SECTION 14. COMPENSATION. The compensation of the
officers of the corporation for their services as such
officers shall be fixed from time to time by the Board of
Directors. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact
that he is also a director of the corporation.
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ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. STOCK CERTIFICATES. Every holder of
stock in the corporation shall be entitled to have a
certificate signed by, or in the name of the Corporation by,
the Chairman of the Board or the President or a Vice-President
and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the
Corporation. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any
class, the designations, preferences and relative,
participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations
or restriction of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation
Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of
the certificate which the Corporation shall issue to represent
such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder
who so requests the designations, preferences and relative,
participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations
or restriction of such preferences and/or rights.
SECTION 2. FACSIMILE SIGNATURES. Any of or all the
signatures, as well as the seal of the Corporation, appearing
on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
SECTION 3. LOST 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 alleged to have been lost, stolen, or
destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen, or destroyed certificate or
certificates, or his legal representative, to give corporation a
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bond equivalent to such sum as may be made against the Corporation on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 4. TRANSFERS OF STOCK. Upon surrender to the corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of successors, assignment or 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 records provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of transfer if, when the
certificates are presented to the Corporation for transfer, both the transferor
and the transferee request the Corporation to do so.
SECTION 5. TRANSFER AGENTS AND REGISTRARS. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as it
may deem expedient concerning the issued transfer and registration of
certificates for shares of stock of the Corporation.
SECTION 7. FIXING THE RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment or any
dividend or other distribution or allotment of any rights, or entitled 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,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 8. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
records as the owner of shares of stock to
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receive dividends and to vote as such owner, shall be entitled
to hold liable for calls and assessments in person registered
on its records as the owner of shares of stock, and shall not
be bound to recognize any equitable or other claim to or
interest in such share or shares of stock on the part of any
other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. GENERAL. The Corporation shall idemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation, as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
accounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if
he (a) acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and (b) with respect to any criminal action or
proceeding, had not reasonable casuse to believe his conduct
was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person (x) did not act
in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Corporation,
and, (y) with respect to any criminal act or proceeding, did
not have reasonable cause to believe that his conduct was
unlawful.
SECTION 2. DERIVATIVE ACTIONS. The Corporation shall
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably
incurred by him in
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connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the corporation; provided, however, 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
for negligence or misconduct in the performance of his duty
to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper.
SECTION 3. INDEMNIFICATION IN CERTAIN CASES. To the
extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
Section 1 and 2 of this Article VI, or in defense of any
claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 4. PROCEDURES. Any indemnification under
Section 1 and 2 of this Article VI (unless ordered by a court)
shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in such Section 1 and 2. Such determination
shall be made (a) by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (b) if such quorum is not
obtainable, or even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders.
SECTION 5. ADVANCES FOR EXPENSES. Expenses incurred
in defending a civil or criminal action, suit or proceeding
may be paid by the Corporation in advance of the final
disposition of such actions, suit or proceeding as authorized
by the Board of Directors in the specific case upon receipt of
an undertaking by or on behalf of the director, officer,
employee or agents to repay such amount unless it shall be
ultimately determined that he is entitled to be indemnified by
the Corporation as authorized in this Article VI.
SECTION 6. RIGHTS NON-EXCLUSIVE. The indemnification
provided by this Article VI shall not be deemed exclusive of
any
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other rights to which those seeking indemnification may be
entitled under any law, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
SECTION 7. INSURANCE. The Corporation shall have
power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any 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 under the
provisions of this Article VI.
SECTION 8. DEFINITION OF CORPORATION. For the
purposes of this Article VI, reference to "the Corporation"
shall include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was serving at the
request of such constituent corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this
Article VI with respect to the resulting or surviving
corporation as he would if he had served the resulting or
surviving, corporation in the same capacity.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Subject to the provisions of
statute and the Certificate of Incorporation, dividends upon
the shares of capital stock of the Corporation may be declared
by the Board of Directors at any regular or special meeting.
Dividends may be paid in cash, in property or in shares of
stock of the Corporation, unless otherwise provided by statute
or the Certificate of Incorporation.
SECTION 2. RESERVES. Before payment of any dividend,
there be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of
Directors may, from time to time, in its absolute discretion,
think proper as a reserve or reserves to meet contingencies,
or for equalizing
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dividends, or for repairing or maintaining any property of the
Corporation or for such other purposes as the Board of Directors
may think conducive to the interests of the Corporation. The
Board of Directors may modify or abolish any such reserves in
the manner in which it was created.
SECTION 3. CORPORATE SEAL. The seal of the
Corporation shall be in such form as shall be approved by the
Board of Directors.
SECTION 4. FISCAL YEAR. The fiscal year of the
Corporation shall be fixed, and once fixed may thereafter be
changed, by resolution of the Board of Directors.
SECTION 5. CHECKS, NOTES, DRAFTS ETC. All checks,
notes, drafts or other orders for the payment of money to the
corporation shall be signed, endorsed or accepted in the name
of the Corporation by such officer, officers, person or
persons as from time to time may be designated either by the
Board of Directors or by an officer or officers authorized by
the Board of Directors to make such designation.
SECTION 6. EXECUTION OF CONTRACTS, DEEDS, ETC. The
Board of Directors may authorize any officer or officers,
agent or agents, in the name and on behalf of the Corporation
to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and
such authority may be general or confined to specific
instances.
SECTION 7. VOTING OF STOCK IN OTHER CORPORATION.
Unless otherwise provided by resolution of the Board of
Directors, the Chairman of the Board or the President, from
time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the corporation may be
entitled to cast as a shareholder or otherwise in any other
corporation, any of whose shares or securities may be held by
the corporation, at meetings of the holders of the shares or
other securities of such other corporation. In the event one
or more attorneys or agents are appointed, the Chairman of the
Board or the President may instruct the person or persons so
appointed as to the manner of casting such votes or giving
such consent. The Chairman of the Board or the President may,
or may instruct the attorneys or agents appointed to, execute
or cause to be executed in the name and on behalf of the
corporation and under its seal or otherwise, such written
proxies, consents, waivers or other instruments as may be
necessary or proper in the circumstances.
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ARTICLE VIII
AMENDMENTS
These By-Laws may be amended or repealed or new by-laws
adopted (a) by action of the stockholders entitled to vote
thereon at any annual or special meeting of stockholders or
(b) if the Certificate of Incorporation so provides, by action
of the Board of Directors at a regular or special meeting
thereof, subject to the voting requirements set forth in
Section 7(b) of Article III of these By-Laws. Any by-law made
by the Board of Directors may be amended or repealed by action
of the stockholders at any annual or special meeting of
Stockholders.
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