AMENDED AND RESTATED BYLAWS
OF
AMERICAN SKIING COMPANY
Adopted: July 10, 2001
ARTICLE I
NAME
Section 1. Name. The name of this corporation is stated in the
Certificate of Incorporation, as amended by the Certificate of Ownership and
Merger Merging American Skiing Company into ASC Delaware, Inc. filed with the
Secretary of State of Delaware on or about October 8, 1999.
ARTICLE II
REFERENCES, LOCATION AND SEAL
Section 1. References. References in these Bylaws to the
Certificate of Incorporation shall mean this corporation's Certificate of
Incorporation as amended from time to time, as on file with the Secretary of
State of Delaware. References in these Bylaws to the Delaware General
Corporation Law and to particular sections of said Law are to said Law and said
sections as amended from time to time. The headings of Articles and Sections in
these Bylaws are for convenience only, and shall not be taken into account in
construing these Bylaws.
Section 2. Office and Location. The registered office of this
corporation in Delaware and the municipality or other place in Delaware where it
is located are set forth in the Certificate of Incorporation. The principal
office and place of business of this corporation, within or without Delaware or
Maine, shall be at such place as the Board of Directors shall from time to time
fix.
Section 3. Seal. The seal of this corporation shall be circular
in form with the name of the corporation, the word "Delaware" and the year of
its incorporation so engraved on its face that it may be embossed on paper by
pressure, provided that the Board of Directors may adopt a wafer seal in any
form in respect of any particular document, in which case such wafer seal
affixed to such document shall be the corporate seal of this corporation thereon
for all purposes provided by law. The Secretary shall have custody of the
corporate seal and he or the Assistant Secretary may affix the same to documents
requiring it and attest the same. The Secretary may permit the President or
Assistant Secretary to keep a duplicate of the corporate seal.
ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 1. Place. All meetings of shareholders shall be held at
the registered office of the corporation or at such other place within or
without Delaware as shall be fixed (i) by the Board of Directors, (ii) by the
person or persons calling the meeting, or (iii) in waivers of notice of the
meeting signed by all persons entitled to notice thereof.
Section 2. Date of Annual Meeting. The annual meeting of
shareholders shall be held on the third Monday of November in each year, if not
a legal holiday, and if a legal holiday, then on the next business day
following, at 10:00 a.m., Local Time, or at such other hour as may be fixed by
the President or Board of Directors, for the election of a Board of Directors,
and for the transaction of such other business as may properly come before the
meeting. The annual meeting of shareholders may likewise be held at any date and
time fixed by the President or Board of Directors during a period of 30 days
after the date hereinabove specified. If there shall be a failure for whatever
reason to hold the annual meeting for a period of 30 days after the date
hereinbefore specified, a substitute annual meeting of shareholders may be
called by any person or persons entitled to call a special meeting of
shareholders.
Section 3. Call of Special Meetings. Special meetings of
shareholders for any purpose or purposes may be called to be held at the date
and time fixed in the call by the President, the Chairman of the Board of
Directors (if any), a majority of the Board of Directors, or the holders of not
less than 50% of the shares entitled to vote at the meeting.
Section 4. Notice. Unless waived in the manner prescribed by law,
written notice stating the place, day and time of the meeting and, in case of a
special meeting or when otherwise required by the Delaware General Corporation
Law, the purpose or purposes for which the meeting is called, shall be delivered
within the time period prescribed in Section 222 of the Delaware General
Corporation Law, either personally or by mail, by or at the direction of the
President, Secretary, , or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting, and to shareholders of
record not entitled to vote when required by the Delaware General Corporation
Law.
ARTICLE IV
QUORUM AND VOTING OF SHARES
Section 1. Quorum. The holders of a majority of the shares
entitled to vote thereat shall constitute a quorum at a meeting of shareholders.
Section 2. Votes. Except as otherwise provided by the Delaware
General Corporation Law, any corporate action shall be authorized by a majority
of the votes cast at the meeting by the holders of shares entitled to vote on
the subject matter. In elections of Directors, those candidates who receive the
greatest number of votes cast at the meeting by the holders of shares entitled
to vote to elect Directors, even though not receiving a majority of the votes
cast, shall be deemed elected.
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ARTICLE V
DIRECTORS
Section 1. Number and Term. The number of Directors shall be
fixed by resolution of the shareholders or the Board of Directors within the
limits specified in the Certificate of Incorporation. The Directors shall be
elected at the annual meeting of the shareholders, and each Director so elected
shall hold office for one year and until the next succeeding annual meeting and
until his successor shall have been elected and qualified, or until his earlier
resignation, removal from office, death or incapacity.
Section 2. Vacancies, Resignation and Removal. Except as
otherwise provided in the Certificate of Incorporation, any vacancy in the Board
of Directors, including newly created directorships created by an increase in
the number of Directors, may be filled by a majority of the remaining Directors
or by the sole remaining Director. Any Director may resign his office by
delivering a written resignation to the President or Secretary.
Section 3. Powers. In the management and control of the business,
property and affairs of the corporation, the Board of Directors is hereby vested
with the power to authorize any and all corporate action, except when
shareholder action is specifically required by the Delaware General Corporation
Law, the Certificate of Incorporation or these Bylaws.
Section 4. Special Voting Requirements. For so long as the
Stockholders (as defined in the Certificate of Designation authorizing the 12%
Series C-1 Convertible Participating Preferred Stock of this corporation (the
"Series C-1 Preferred Stock") (the "Series C-1 Certificate of Designation"))
Beneficially Own (as defined in the Series C-1 Certificate of Designation) at
least 25% of both the number of shares of Series C-1 Preferred Stock and the
number of shares of this corporation's 15% Series C-2 Preferred Stock (the
"Series C-2 Preferred Stock") that they own on the Issue Date (as defined in the
Series C-1 Certificate of Designation) (as such number may be adjusted for stock
splits, stock dividends and similar transactions), the corporation shall not
take the actions listed in clauses (i) through (ix) below without the
affirmative vote of at least one Stockholder Director or Series C-1 Preferred
Director (as each such term is defined in the Series C-1 Certificate of
Designation), either as part of the vote of the full Board of Directors or of
the Executive Committee.
(i) Approval of an annual operating and capital budget,
which shall include operating plans, detailed capital expenditure plans and a
business plan (the "Budget"), which Budget will include, without limitation:
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(A) detailed operating assumptions relating to,
without limitation, (1) pricing, (2) expected skier visits, (3) an explanation
of changes in operating cost from the prior year, (4) head-count and expected
seasonal head-count, (5) departmental "sales, general and administrative"
expenses, including marketing plans and related budgets, and (6) a detailed
analysis of all required capital expenditures, including return on investment
analysis and a prioritization of both growth and maintenance capital
expenditures;
(B) planned material acquisitions, divestitures
and other development decisions (1) involving more than $2,000,000 in the
aggregate or (2) reasonably expected to have an impact of 5% or more on the
corporation's consolidated revenues orearnings;
(C) overall corporate strategy, including actions
that involve repositioning the corporation, commencing new lines of business or
significantly expanding lines of existing business (other than the skiing
business) or making material investments in joint ventures or non-controlled
operating companies;
(D) requirements for capital in accordance with
the Budget, including, without limitation, planned material financings (whether
in the form of debt or equity), including (1) issuance of debt or equity
securities, (2) entering into material new credit or financing agreements, (3)
materially increasing lines of credit or making material changes in existing
credit arrangements, (4) pledging material assets, (5) the payment of dividends
on outstanding capital stock of the corporation and (6) any redemption or
repurchase of capital stock of the corporation, other than (x) the redemption or
repurchase of the Series C-1 Preferred Stock, the Series C-2 Preferred Stock or
of this corporation's 8.5% Series B Convertible Participating Preferred Stock or
Series D Participating Preferred Stock, and (y) redemptions in accordance with
the terms of any equity incentive plan, agreement or other bonus, award or stock
arrangement with respect to any directors, officers or other employees of this
corporation (each such arrangement, an "Employee Plan"); and
(E) a "materiality" standard for variations in the
Budget requiring Board of Directors' approval.
(ii) Significant executive personne decisions
(other than terminations), including, without limitation, hiring decisions or
decisions materially changing the compensation or responsibilities of the chief
executive officer, the president, the chief operating officer, the chief
financial officer or the general counsel of the corporation, or the chief
operating officer (or equivalent position) of American Skiing Company Resort
Properties, Inc.
(iii) Material actions that are likely to affect the
corporation's operating and strategic direction that are reasonably expected or
likely to have an impact of 5% or more on the corporation's consolidated
revenues or earnings.
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(iv) Any amendment to the corporation's Certificate of
Incorporation or Bylaws.
(v) Any voluntary liquidation, dissolution, winding
up, recapitalization or reorganization of the corporation.
(vi) Initiation of material litigation other than with
respect to any counterclaim made by the corporation in response to any claim
made by a third party.
(vii) Any merger, consolidation or other business
combination of the corporation with or into another person or entity or any sale
of all or substantially all the assets of the corporation or any of ASC East,
Inc., ASC West, Inc., ASC Utah, Inc. and American Skiing Company Resort
Properties, Inc. or any other subsidiary of the corporation, whether existing
now or created after the date of these Bylaws, that is material to the
corporation and its subsidiaries, taken as a whole.
(viii) Material changes to or reduction in insurance
coverage.
(ix) Material financing or capital markets activity
not expressly provided in the Budget.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Annual Meeting. The first meeting of each newly
elected Board of Directors, which shall be the Annual Meeting of the Board of
Directors, shall be held at such time and place as shall be fixed by the
shareholders at their meeting electing them, or if no such time and place are so
fixed, said first meeting shall be held at the place of and immediately
following such meeting of shareholders. In either event, no notice of such
meeting shall be necessary. Such meeting of the Board of Directors may also
convene at such place and time as shall be fixed by the consent in writing of
all the Directors.
Section 2. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place as shall from time to time be fixed
by the Board of Directors, and shall be held at least four (4) times in each
fiscal year commencing August, 2000. Unless action is to be taken with respect
to the Certificate of Incorporation or Bylaws, no notice of such regular
meetings shall be necessary.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors (if any),
President, Secretary or any other person or persons authorized by the Delaware
General Corporation Law. The person or persons calling the special meeting shall
fix the time and place thereof.
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Section 4. Notice; Generally. Notice of each special meeting of
the Board of Directors shall be given to each Director who has not signed a
waiver of notice before or after the meeting. Notices of meetings of the Board
of Directors shall be given by the Secretary or the person or persons calling
the meeting. Neither the business to be transacted at nor the purpose of the
meeting need be specified in the notice unless the Delaware General Corporation
Law shall otherwise require. The giving of notice of a special meeting of the
Board of Directors by or at the direction of the person or persons authorized to
call the same shall constitute the call thereof.
Section 5. Notice; When and How Given. Notice of meetings of the
Board of Directors may be given by any of the following methods within the time
period specified for that method:
(i) by depositing a copy of the notice in the United
States mail, first class postage prepaid, addressed to the Director at his usual
or last known business or residence address, at least 3 business days before the
meeting;
(ii) by delivering a copy of the notice to a
recognized overnight delivery or express service addressed to the Director at
his usual or last known business or residence address, including street or the
like in the address, at least 2 business days before the meeting;
(iii) by delivering a copy of the notice in hand to
the Director at least 24 hours before the meeting;
(iv) by reading or causing to be read the notice over
the telephone to the Director at least 24 hours before the meeting;
(v) by sending a telegram containing the contents of
the notice addressed to the Director at his usual or last known business or
residence address at least 2 business days before the meeting;
(vi) by transmitting the contents of the notice by
telecopy, fax or any other electronic means for the simultaneous
or substantially simultaneous transmission of data to a telephone or other
number held out by the Director as a numbermaintained by him for the receipt of
the means of transmission selected at least 24 hours before the meeting; or
(vii) by sending a copy of the notice by any usual
means of communication addressed to the Director at his usual or last known
business or residence address, including street or the like in the address, at
least 3 business days before the meeting.
Notice to any Director actually received by him at least 24 hours
before the meeting shall be deemed sufficient, notwithstanding the method or
means of communication selected or the time when sent. For the purposes of this
Section, a "business day" is any day other than a Saturday, Sunday or legal
holiday in Maine.
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ARTICLE VII
EXECUTIVE AND OTHER COMMITTEES
Section 1. Establishment; Authority. The Board of Directors, by a
resolution adopted by a majority of the Directors then in office, may designate
from among its members an executive committee and other committees, each
consisting of 2 or more Directors, and may delegate to such committee or
committees any part or all of the authority of the Board of Directors, except as
otherwise provided by Section 141(c)(2) of the Delaware General Corporation Law.
Without limitation of the foregoing, no Employee Plan may be adopted or amended
in any material respect without the approval of the compensation and stock bonus
(or equivalent) committee, which approval must include the affirmative vote of
at least one Stockholder Director or Series C-1 Preferred Director.
Section 2. Procedures. Vacancies in the membership of a committee
shall be filled by resolution adopted by a majority of the Directors then in
office in accordance with the provisions set forth in Section 1 of this Article
VII. Committees shall keep minutes of their proceedings and report the same to
the Board of Directors. Members of a committee may be removed from office, with
or without cause, by resolution adopted by a majority of the Directors then in
office. Any person or persons authorized to call a meeting of the Board of
Directors, as well as the chairman of a committee or the committee itself, may
call a meeting of a committee. Except as hereinbefore otherwise provided, so far
as applicable, the provisions of these Bylaws relating to the calling, noticing
and conduct of meetings of the Board of Directors shall govern the calling,
noticing and conduct of meetings of committees.
ARTICLE VIII
OFFICERS
Section 1. Number. The officers of the corporation shall be
elected by the Board of Directors and shall be a President, a Chief Operating
Officer and President-Resort Operations, a Secretary and a Treasurer. The Board
of Directors may also elect one or more Vice Presidents (one of whom may be
designated by the Board of Directors as the Executive Vice President), and one
or more Assistant Secretaries and Assistant Treasurers.
Section 2. When Chosen; Qualifications; Term; Removal. The Board
of Directors at its initial meeting after the incorporation of the corporation
and at each Annual Meeting thereafter shall elect said officers, who shall hold
office until the next Annual Meeting of the Board of Directors and thereafter
until their successors are chosen and have qualified, or until their earlier
death, resignation or removal from office.
The President (and any other officer which may at any time be
deemed to be the chief executive officer, if the President is not so identified)
may be removed only by the affirmative vote of at least (a) seven (7) directors,
in the event that there are eleven (11) directors, (b) six (6) directors
(including at least one director who is not related to Mr. Leslie Otten, the
Stockholders, their respective affiliates, or to this corporation in any other
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capacity than his/her capacity as a director of this corporation (an
"Independent Director")) in the event that there are ten (10) directors, (c)
two-thirds of the directors (including at least one Independent Director), in
the event that there are fewer than ten (10) directors, or (d) a majority of the
directors (including at least one Independent Director) in the event that there
are more than eleven (11) directors.
The President shall have sole authority to remove the chief
operating officer, the chief financial officer or the general counsel of the
corporation, or the chief operating officer (or equivalent position) of American
Skiing Company Resort Properties, Inc., but only after having sought (but not
necessarily obtained) the approval of the Executive Committee and the Board of
Directors at duly called meetings thereof.
Section 3. Authority and Duties. Each officer shall have such
authority and perform such duties as are set forth in the Delaware General
Corporation Law or in these Bylaws, and as shall be determined from time to time
by the Board of Directors. Each officer shall also have such authority and
perform such duties as are usually incumbent upon his office except as the same
may be limited from time to time by the Board of Directors.
Section 4. Compensation of Officers. The compensation of all
officers of the corporation shall be fixed by the Board of Directors.
Section 5. President. The President shall be the chief executive
officer of the corporation, shall preside at all meetings of the shareholders
and of the Board of Directors at which he is present, and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
Section 6. Vice President. The Vice President, if any, or if
there shall be more than one, the Vice Presidents in the order determined by the
Board of Directors, shall, in case of the absence or disability of the
President, have the authority and perform the duties of the President. If the
Board of Directors shall elect an Executive Vice President, it shall be presumed
that he is the Vice President determined by the Board of Directors first to act
in case of the absence or disability of the President.
Section 7. Secretary. The Secretary shall attend all meetings of
the Board of Directors and the shareholders and record all the proceedings of
the Board of Directors and the shareholders in a book or books kept for that
purpose. The Secretary shall perform like duties for the executive committee.
The Secretary or an Assistant Secretary may certify all votes, resolutions and
actions of the shareholders and the Board of Directors and its committees.
Section 8. Assistant Secretaries. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries, in the order determined by
the Board of Directors, shall, in case of the absence or disability of the
Secretary, have the authority and perform the duties of the Secretary.
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Section 9. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, and shall deposit all such funds 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 keep or cause to be kept all books
and records of account and shall prepare or cause to be prepared all financial
statements required by the Delaware General Corporation Law, the Board of
Directors or good accounting practices. The Treasurer shall render to the Board
of Directors, whenever required, accounts of all corporate financial
transactions and of the financial condition of the corporation.
Section 10. Assistant Treasurers. Except as hereinbefore
provided, the Assistant Treasurer, or, if there shall be more than one, the
Assistant Treasurers, in the order determined by the Board of Directors, shall,
in case of the absence or disability of the Treasurer, have the authority and
perform the duties of the Treasurer.
ARTICLE IX
VOTING SHARES OF OTHER CORPORATIONS
Section 1. Voting Shares of Other Corporations. The Chairman of
the Board of Directors, if any, the President, any Vice President, the
Secretary, and the Treasurer of this corporation, in that order, shall have
authority to vote shares of other corporations standing in the name of this
corporation, and the President or the Secretary is authorized to execute and
deliver in the name and on behalf of this corporation proxies appointing any one
or more of the foregoing officers as the proxy agents of this corporation.
ARTICLE X
LOST STOCK CERTIFICATES
Section 1. Lost Stock Certificates. The Board of Directors may
authorize, generally or in a specific case, the appropriate officers to execute
and deliver a replacement certificate for shares of this corporation in
substitution for any certificate for shares theretofore issued alleged to have
been lost, destroyed or stolen. Unless waived by the Board of Directors, the
officers executing the replacement certificate shall require the registered
holder thereof to sign and swear to an affidavit of loss and indemnity agreement
in such form as shall be prescribed by the Secretary. In addition, the Board of
Directors may prescribe such other terms and conditions precedent to the
issuance of replacement certificates, including without limitation the
requirement of further indemnities and surety bonds or insurance policies, as it
deems appropriate to protect the corporation and its officers and agents from
any claim that may be made against it or them with respect to any such
certificate alleged to have been lost, destroyed or stolen. The powers and
duties of the Board of Directors prescribed in this ARTICLE X may be delegated
in whole or in part to any registrar or transfer agent for this corporation.
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ARTICLE XI
TRANSFERS AND REGISTRATION OF SHARES
Section 1. Stock Transfer Books. Upon surrender to the
corporation or the transfer agent of the corporation of a certificate
representing shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, a new certificate shall be
issued to the person entitled thereto, and the old certificate cancelled and the
transaction recorded in the original stock transfer books of the corporation,
provided that the provisions of Article XV of these Bylaws respecting
restrictions on transfers of shares have been complied with. The original issue
of shares of this corporation shall likewise be recorded in the original stock
transfer books of the corporation.
Section 2. Registered Shareholders. The corporation shall be
entitled to recognize the person or persons shown on its original stock transfer
books as the owner of shares as the exclusive and only owner thereof for all
purposes, including without limitation the right to (i) receive dividends and
other distributions; (ii) vote (except as otherwise provided in the Delaware
General Corporation Law); and (iii) examine lists, books, minutes or other
materials relating to the corporation. 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 not noted in its original stock transfer books, whether or
not it shall have express or other notice thereof.
ARTICLE XII
INDEMNIFICATION
Section 1. Definitions. For all purposes of this Article, (i) the
term "Officer" (when capitalized, but not otherwise) shall mean any person who
is or was a Director, the President, the Treasurer, or the Secretary of this
corporation; (ii) the term "Employee" (when capitalized, but not otherwise)
shall mean any other person (whether or not a common law employee) who is or was
an officer, employee or agent of this corporation, or is or was serving at the
request of this corporation as a director, officer, trustee, partner, fiduciary,
employee or agent of another corporation, partnership, joint venture, trust,
pension or other employee benefit plan, or other enterprise; and (iii) the term
"Claimant" (when capitalized, but not otherwise) shall mean any Officer or
Employee seeking indemnification under this Article.
Section 2. Indemnification. This corporation shall in all cases
indemnify any Officer, and shall have power exercisable by its Board of
Directors as provided in Section 5 hereof to indemnify any Employee, 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 the Claimant is or was an Officer or Employee, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement to the extent actually and reasonably incurred by the Claimant in
connection with such action, suit or proceeding if the Claimant:
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(i) Acted in good faith and in a manner that, in the
Claimant's reasonable belief, was in or not opposed to the best interests of
this corporation; or
(ii) With respect to any criminal action or
proceeding, had no reasonable cause to believe that the Claimant's conduct
was unlawful.
The termination of any action, suit or proceeding by judgment,
order or conviction adverse to the Claimant, or by settlement or plea of nolo
contendere or its equivalent, shall not of itself create a presumption that the
Claimant did not act in good faith and in a manner that, in the Claimant's
reasonable belief ,was in or not opposed to the best interests of this
corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the Claimant's conduct was unlawful.
Section 3. Derivative Actions. The corporation shall indemnify
any Officer, and shall have power exercisable by its Board of Directors as
provided in Section 5 hereto to indemnify any Employee, 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 this corporation to procure a judgment in its
favor by reason of the fact that the person is or was an Officer or Employee
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the Claimant acted in good faith and in a manner the Claimant reasonably
believed to be in or not opposed to the best interests of this corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such Claimant shall have been adjudged to be liable to this
corporation unless and only to the extent that the Delaware Court of Chancery 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 Claimant is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 4. When Defense Successful. Any provisions of Sections 2,
3 or 5 hereof to the contrary notwithstanding, to the extent that a Claimant has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 2 or 3, or in defense of any claim, issue or
matter therein, the Claimant shall be indemnified against expenses, including
attorneys' fees, actually and reasonably incurred in connection therewith.
Section 5. Determination in Specific Cases. Any indemnification
under Section 2 or 3 hereof, unless ordered by a court or required by Section 4
hereof, shall be made by this corporation only as authorized in the specific
case upon a determination that indemnification of the Claimant is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in Section 2 or 3 hereof, as applicable, and in the best interests of this
corporation. Where such a case specific determination is required, that
determination shall be made, with respect to a Claimant who is a director or
officer of this corporation at the time of such determination, by the Board of
Directors by a majority vote of the Directors who were not parties to the
action, suit or proceeding, even though less than a quorum, or by a committee of
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such directors designated by a majority vote of such directors, even though less
than a quorum, or if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or by the
shareholders. Such a determination once made may not be revoked and, upon the
making of that determination, the Claimant may enforce the indemnification
against this corporation by a separate action notwithstanding any attempted or
actual subsequent action by the Board of Directors.
Section 6. Advances of Expenses. Expenses incurred by or in
behalf of a Claimant in defending a civil, criminal, administrative or
investigative action, suit or proceeding (i) in the case of a Claimant who is an
Employee may be authorized and paid by this corporation in advance of the final
disposition of that action, suit or proceeding upon a determination made in
accordance with the procedure established in Section 5 hereof that, based solely
on the facts then known to those making the determination and without further
investigation, such Claimant satisfies the standard of conduct prescribed by
Section 2 or Section 3 hereof, as applicable, and (ii) in the case of a Claimant
who is an Officer shall in all cases be paid, as reasonably requested from time
to time by the Officer, and in the case of an Employee, may (subject to clause
(i) of this Section 6) be paid, by this corporation in advance of the final
disposition of the action, suit or proceeding upon receipt by this corporation,
at the time of the initial advance, of a written undertaking by or on behalf of
it to repay all amounts advanced if it is ultimately determined that the
Claimant is not entitled to be indemnified by this corporation as authorized in
this Article XII.
The undertaking described in clause (ii) shall be an unlimited
general obligation of the Claimant seeking the advance, but need not be secured
and may be accepted without reference to financial ability to make the
repayment.
Section 7. Indemnification Not Exclusive. The indemnification and
entitlement to advances of expenses provided by this Article shall not be deemed
exclusive of any other rights to which a Claimant may be entitled under any
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in the Claimant's official capacity and as to action in another
capacity while holding an office with this corporation, and shall continue as to
a person who has ceased to be a director, officer, employee, agent, trustee,
partner or fiduciary and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of such a person.
Section 8. Enforceable By Separate Action. A right to
indemnification required by this Article or established pursuant to the
provisions of this Article may be enforced by a separate action against this
corporation, if an order for indemnification has not been entered by a court in
any action, suit or proceeding in respect to which indemnification is sought.
Section 9. Miscellaneous. For purposes of this Article, (i)
references to this "corporation" shall include, in addition to the surviving
corporation or new corporation, any participating corporation in a consolidation
or merger; (ii) this corporation shall be deemed to have requested a person to
serve an employee benefit plan whenever the performance by him of his duties to
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this corporation also imposes duties on, or otherwise involves services by, him
to the plan or participants or beneficiaries of the plan; and (iii) excise taxes
assessed on a person seeking indemnification with respect to an employee benefit
plan pursuant to applicable law shall be deemed "fines".
Section 10. Amendment. Any amendment, modification or repeal of
this Article shall not deny, diminish or otherwise limit the rights of any
Claimant to indemnification or advances hereunder with respect to any action,
suit or proceeding arising out of any conduct, act or omission occurring or
allegedly occurring at any time prior to the date of such amendment,
modification or repeal.
ARTICLE XIII
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the corporation shall
be fixed by resolution of the Board of Directors.
ARTICLE XIV
EXECUTION OF DOCUMENTS
Section 1. Execution of Documents. Unless the Board of Directors,
Executive Committee or shareholders shall otherwise generally or in any specific
instance provide:
(i) Any bill, note or negotiable instrument may be
signed or endorsed in the name and on behalf of this corporation in the ordinary
course of business by the President or Treasurer, acting singly;
(ii) The President or Treasurer, acting singly, shall
in the ordinary course of business have authority to sign or endorse in the name
and on behalf of this corporation all checks and other orders for the payment of
money drawn on any bank or trust company;
(iii) The President or Treasurer, acting singly, shall
have authority to make, in the name and on behalf of this corporation, all
contracts in the ordinary course of business; and
(iv) Any other instrument, document, deed, bill of
sale or other writing of whatever nature to be executed in the ordinary course
of business may be executed in the name and on behalf of this corporation by the
President or Treasurer, acting singly, and either officer may seal, acknowledge
and deliver the same.
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Section 2. Assistants. Vice Presidents and Assistant Treasurers
shall not have the authority provided in Section 1 unless granted by the Board
of Directors generally or in any specific instance.
ARTICLE XV
AMENDMENTS TO BYLAWS
Section 1. Amendments. Subject to the provisions of Article V,
Section 4, the Board of Directors shall have the power to alter, amend or repeal
these Bylaws, and to adopt new Bylaws, provided that the notice, unless notice
shall be duly waived, of any regular or special meeting at which such action is
to be taken shall either set out the text of the proposed new Bylaw or amendment
or Bylaw to be repealed, or shall summarize the changes to be effected by such
adoption, amendment or repeal, and provided further that the shareholders may
amend or repeal a Bylaw provision adopted by the Board of Directors and in such
case the Board of Directors may not, for two years thereafter, amend or readopt
the Bylaw provision thus amended or repealed by the shareholders.
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