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Exhibit 3.63
AMENDED AND RESTATED
BY-LAWS
OF
KTI ENVIRONMENTAL GROUP, INC.
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BY-LAWS
TABLE OF CONTENTS
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ARTICLE I OFFICES.......................................................................................1
1.01 Registered Office................................................................................1
1.02 Other Offices....................................................................................1
ARTICLE II SEAL..........................................................................................1
2.01 Seal.............................................................................................1
ARTICLE III SHAREHOLDERS' MEETINGS........................................................................1
3.01 Place............................................................................................1
3.02 Annual Meetings..................................................................................1
3.03 Special Meetings.................................................................................1
3.04 Notice of Shareholders' Meetings.................................................................2
3.05 Waiver Of Notice.................................................................................2
3.06 Action by Shareholders Without Meeting...........................................................2
3.07 Fixing Record Date...............................................................................4
3.08 Voting Lists.....................................................................................4
3.09 Quorum...........................................................................................5
3.10 Voting...........................................................................................5
3.11 Election of Directors............................................................................5
3.12 Inspectors of Election...........................................................................5
3.13 Conduct of Meetings..............................................................................6
ARTICLE IV DIRECTORS.....................................................................................6
4.01 Number of Directors..............................................................................6
4.02 Term of Directors................................................................................6
4.03 Removal of Directors.............................................................................6
4.04 Quorum of Board of Directors and Committees; Action of Directors Without a Meeting...............7
4.05 Place of Board of Directors Meeting..............................................................7
4.06 Annual Meeting...................................................................................7
4.07 Meetings of the Board of Directors...............................................................7
4.08 Adjournment......................................................................................7
4.09 Powers of Directors..............................................................................8
4.10 Compensation of Directors........................................................................8
4.11 Executive Committees.............................................................................8
ARTICLE V OFFICERS......................................................................................8
5.01 Officers.........................................................................................8
5.02 Salaries.........................................................................................8
5.03 Removal..........................................................................................9
5.04 President........................................................................................9
5.05 Vice President...................................................................................9
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5.06 Chairman of the Board............................................................................9
5.07 Secretary........................................................................................9
5.08 Chief Financial Officer..........................................................................9
5.09 Treasurer.........................................................:..............................9
5.10 Assistant Secretary or Assistant Treasurer......................................................10
ARTICLE VI VACANCIES....................................................................................10
6.01 Directors.......................................................................................10
6.02 Officers........................................................................................10
6.03 Resignations....................................................................................10
ARTICLE VII SHARE CERTIFICATES...........................................................................10
7.01 Certificates....................................................................................10
7.02 Uncertificated Shares...........................................................................11
7.03 Transfer of Shares..............................................................................11
7.04 Fractional Shares...............................................................................11
7.05 Loss of Certificates............................................................................11
ARTICLE VIII BOOKS AND ACCOUNTS...........................................................................11
8.01 Records.........................................................................................11
8.02 Inspection......................................................................................11
ARTICLE IX MISCELLANEOUS PROVISIONS.....................................................................12
9.01 Monetary Disbursements..........................................................................12
9.02 Fiscal Year.....................................................................................12
9.03 Dividends.......................................................................................12
9.04 Reserve.........................................................................................12
9.05 Giving Notice...................................................................................12
9.06 Loans to Directors, Officers or Employees.......................................................12
9.07 Disallowed Compensation.........................................................................12
ARTICLE X AMENDMENTS...................................................................................13
10.01 Amendments......................................................................................13
ARTICLE XI INDEMNIFICATION AND INSURANCE................................................................13
11.01 Indemnification.................................................................................13
11.02 Insurance.......................................................................................13
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BY-LAWS
OF
KTI ENVIRONMENTAL GROUP, INC.
ARTICLE I
OFFICES
1.01 REGISTERED OFFICE: The initial registered office of the
Corporation shall be c/o Robert Wetzel, 7000 Boulevard East, Guttenberg, NJ
07093. The Board of Directors may change the registered office from time to
time.
1.02 OTHER OFFICES: The Corporation may have such other offices either
within or without the State of New Jersey as the Board of Directors may
designate or as the business of the Corporation may require from time to time.
ARTICLE II
SEAL
2.01 SEAL: The corporate seal shall be in the form adopted by the Board
of Directors and may be altered by them from time to time.
ARTICLE III
SHAREHOLDERS' MEETINGS
3.01 PLACE: All meetings of the shareholders shall be held at the
registered office of the Corporation or at such other place or places, either
within or without the State of New Jersey, as may from time to time be selected
by the Board of Directors.
3.02 ANNUAL MEETINGS: The annual meeting of shareholders shall be held
at such time as may be fixed by the Board of Directors. At that meeting the
shareholders shall elect, by a plurality vote, a Board of Directors, and
transact such other business as may properly come before the meeting.
3.03 SPECIAL MEETINGS: Special meetings of the shareholders may be
called only by the President, the Chairman of the Board of Directors of the
Corporation (if any) or by order of a majority of the Board of Directors. Such
written request shall state the purpose or purposes of the proposed meeting.
Business transacted at a special meeting shall be confined to the purpose or
purposes stated in the notice calling such meeting.
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3.04 NOTICE OF SHAREHOLDERS' MEETINGS: Written notice of the time,
place and purpose or purposes of every meeting of shareholders shall be given
not less than ten or more than sixty days before the date of the meeting, either
personally or by mail (to the last address appearing on the books of the
Corporation), to each shareholder of record entitled to vote at the meeting and
to each shareholder otherwise entitled to notice by law, unless a greater period
of notice is required by statute in a particular case.
When a meeting is adjourned to another time or place, it shall not be
necessary to give notice of the adjourned meeting if the time and place to which
the meeting is adjourned are announced at the meeting at which the adjournment
is taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting. However, if after the adjournment
the Board fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder of record on the new record
date entitled to notice.
3.05 WAIVER OF NOTICE: Notice of a meeting need not be given to any
shareholder who signs a waiver of such notice, in person or by proxy, whether
before or after the meeting. The attendance of any shareholder at a meeting, in
person or by proxy, without protesting prior to the conclusion of the meeting
the lack of notice of such meeting, shall constitute a waiver of notice by that
shareholder.
Whenever shareholders are authorized to take any action after the lapse of
a prescribed period of time, the action may be taken without such lapse if such
requirement is waived in writing, in person or by proxy, before or after the
taking of such action, by every shareholder entitled to vote thereon as of the
date of the taking of such action.
3.06 Action by Shareholders Without Meeting:
(1) Any action required or permitted to be taken at a meeting of
shareholders by statute or the Certificate of Incorporation or By-laws of the
Corporation may be taken without a meeting if all the shareholders entitled to
vote thereon consent thereto in writing, except that in the case of any action
to be taken pursuant to Chapter 10 (concerning mergers, etc.) of the New Jersey
Business Corporation Act (the "Act"), such action may be taken without a meeting
only if all shareholders entitled to vote consent thereto in writing and the
Corporation provides to all other shareholders the advance notification required
by paragraph (2)(b) of this section.
(2) Except as otherwise provided in the Certificate of
Incorporation and subject to the provisions of this subsection, any action
required or permitted to be taken at a meeting of shareholders by the Act, the
Certificate of Incorporation, or By-laws, other than the annual election of
Directors, may be taken without a meeting upon the written consent of
shareholders who would have been entitled to cast the minimum number of votes
which would be necessary to authorize such action at a meeting at which all
shareholders entitled to vote thereon were present and voting.
(a) If any shareholder shall have the right to dissent
from a proposed action, pursuant to Chapter 11 of the Act, the Board shall fix a
date on which written consents are to be tabulated; in any other case, it may
fix a date for tabulation. If no date is fixed, consents
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may be tabulated as they are received. No consent shall be counted which is
received more than sixty days after the date of the Board action authorizing the
solicitation of consents or, in a case in which consents, or proxies for
consents, are solicited from all shareholders who would have been entitled to
vote at a meeting called to take such action, more than sixty days after the
date of mailing of solicitation of consents, or proxies for consents.
(b) Except as provided in paragraph (2)(c), the
Corporation, upon receipt and tabulation of the requisite number of written
consents, shall promptly notify all non-consenting shareholders, who would have
been entitled to notice of a meeting to vote upon such action, of the action
consented to, the proposed effective date of such action, and any conditions
precedent to such action. Such notification shall be given at least twenty days
in advance of the proposed effective date of such action in the case of any
action taken pursuant to Chapter 10 of the Act, and at least ten days in advance
in the case of any other action.
(c) The Corporation need not provide the notification
required to be given by paragraph (2)(b) if it
(i) solicits written consents or proxies for
consents from all shareholders who would have been entitled to vote at a
meeting called to take such action, and at the same time gives notice of
the proposed action to all other shareholders who would have been entitled
to notice of a meeting called to vote upon such action;
(ii) advises all shareholders, if any, who are
entitled to dissent from the proposed action, as provided in Chapter 11 of
the Act, of their right to do so and to be paid the fair value of their
shares; and
(iii) fixes a date for tabulation of consents not
less than twenty days, in the case of any proposed action to be taken
pursuant to Chapter 10 of the Act, or not less than ten days in the case of
any other proposed action, and not more than sixty days after the date of
mailing of solicitations of consents or proxies for consents.
(d) Any consent obtained pursuant to paragraph (2)(c) may
be revoked at any time prior to the day fixed for tabulation of consents. Any
other consent may be revoked at any time prior to the day on which the proposed
action could be taken upon compliance with paragraph (2)(b). The revocation must
be in writing and be received by the Corporation.
(3) Whenever action is taken pursuant to subsection (1) or (2),
the written consents of the shareholders consenting thereto or the written
report of inspectors appointed to tabulate such consents shall be filed with the
minutes or proceedings of shareholders.
(4) In case the Corporation is involved in a merger,
consolidation or other type of acquisition or disposition regulated by Chapters
10 and 11 of the Act, the pertinent provisions of the statute should be referred
to and strictly complied with.
(5) Notwithstanding the provisions of this Section 3.06,
immediately following the consummation of an initial public offering under the
Securities Act of 1933, as amended, by the Corporation of any of its capital
stock, shareholders of the Corporation may not take any action by written
consent in lieu of a meeting.
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3.07 Fixing Record Date:
(1) The Board may fix, in advance, a date as the record date
for determining the Corporation's shareholders with regard to any corporate
action or event and, in particular, for determining the shareholders who are
entitled to
(a) notice of or to vote at any meeting of shareholders or
any adjournment thereof;
(b) give a written consent to any action without a
meeting; or
(c) receive payment of any dividend or allotment of any
right.
The record date may in no case be more than sixty days prior to the
shareholders' meeting or other corporate action or event to which it relates.
The record date for a shareholders' meeting may not be less than ten days before
the date of the meeting. The record date to determine shareholders to give a
written consent may not be more than sixty days before the date fixed for
tabulation of the consents or, if no date has been fixed for tabulation, more
than sixty days before the last day on which consents received may be counted.
(2) If no record date is fixed,
(a) the record date for a shareholders' meeting shall be
the close of business on the day next preceding the day on which notice is
given, or, if no notice is given, the day next preceding the day on which the
meeting is held; and
(b) the record date for determining shareholders for any
other purpose shall be at the close of business on the day on which the
resolution of the Board relating thereto is adopted.
(3) When a determination of shareholders of record for a
shareholders' meeting has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date under this section for the adjourned meeting.
3.08 VOTING LISTS: The officer or agent having charge of the stock
transfer books for shares of the Corporation shall make a complete list of
shareholders entitled to vote at a shareholders' meeting or any adjournment
thereof. A list required by this section may consist of cards arranged
alphabetically or any equipment which permits the visual display of the
information required. Such list shall be arranged alphabetically within each
class, series or group of shareholders maintained by the Corporation for
convenience of reference, with the address of, and the number of shares held by,
each shareholder; be produced (or available by means of a visual display) at the
time and place of the meeting; be subject to the inspection of any shareholder
for reasonable periods during the meeting; and be prima facie evidence of the
identity of the shareholders entitled to examine such list or to vote at any
meeting.
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If the requirements of this section have not been complied with, the
meeting shall, on the demand of any shareholder in person or by proxy, be
adjourned until the requirements are complied with. Failure to comply with the
requirements of this section shall not affect the validity of any action taken
at such meeting prior to the making of any such demand.
3.09 QUORUM: Unless otherwise provided in the Certificate of
Incorporation or by statute, the presence of holders of shares (in person or by
proxy) entitled to cast a majority of the votes at a meeting shall constitute a
quorum at such meeting. The shareholders present in person or by proxy at a duly
organized meeting may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum. Less than a
quorum may adjourn.
Whenever the holders of any class or series of shares are entitled to vote
separately on a specified item of business, the provisions of this section shall
apply in determining the presence of a quorum of such class or series for the
transaction of such specified item of business.
3.10 VOTING: Each holder of shares with voting rights shall be entitled
to one vote for each such share registered in his/her name, except as otherwise
provided in the Certificate of Incorporation. Whenever any action, other than
the election of Directors, is to be taken by vote of the shareholders, it shall
be authorized by a majority of the votes cast at a meeting of shareholders by
the holders of shares entitled to vote thereon, unless a greater plurality is
required by statute or by the Certificate of Incorporation.
Every shareholder entitled to vote at a meeting of shareholders or to
express consent without a meeting may authorize another person or persons to act
for him/her by proxy. Every proxy shall be executed in writing by the
shareholder or his/her agent, except that a proxy may be given by a shareholder
or his/her agent by telegram or cable or its equivalent. No proxy shall be valid
for more than eleven months unless a longer time is expressly provided therein.
Unless it is coupled with an interest, a proxy shall be revocable at will. A
proxy shall not be revoked by the death or incapacity of the shareholder but
such proxy shall continue in force until revoked by the personal representative
or guardian of the shareholder. The presence at any meeting of any shareholder
who has given a proxy shall not revoke such proxy unless the shareholder shall
file written notice of such revocation with the Secretary of the meeting prior
to the voting of such proxy.
3.11 ELECTION OF DIRECTORS: At each election of Directors every
shareholder entitled to vote at such election shall have the right to vote the
number of shares owned by him for as many persons as there are Directors to be
elected and for whose election he has a right to vote. Directors shall be
elected by a plurality of the votes cast at the election, except as otherwise
provided by the Certificate of Incorporation.
Elections of Directors need not be by ballot unless a shareholder demands
election by ballot at the election and before the voting begins.
3.12 INSPECTORS OF ELECTION: The Board may, in advance of any
shareholders' meeting, or of the tabulation of written consents of shareholders
without a meeting, appoint one or more inspectors to act at the meeting or any
adjournment thereof or to tabulate such consents and make
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a written report thereof. If inspectors to act at any meeting of shareholders
are not so appointed or shall fail to qualify, the person presiding at a
shareholders' meeting may, and on the request of any shareholder entitled to
vote there at shall, make such appointment.
Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability. No person shall be
elected a Director in an election for which he has served as an inspector.
3.13 Conduct of Meetings:
(1) The President of the Corporation, and in the President's
absence, the Vice President of the Corporation, shall preside at all meetings of
shareholders. In the absence of the President and the Vice President, the
shareholders present shall, by a simple majority vote, elect a chairman of the
meeting.
(2) The Secretary of the Corporation shall act as Secretary of
all meetings of shareholders; in the Secretary's absence, the chairman presiding
at any such meeting shall appoint a person to act as secretary of the meeting.
ARTICLE IV
DIRECTORS
4.01 NUMBER OF DIRECTORS: The number of Directors constituting the
entire Board shall be one or such greater number as shall be set by the vote of
a majority of the Board of Directors then authorized to hold office. A Director
shall be at least eighteen years of age and need not be a United States citizen
or resident of this State or a shareholder in the Corporation. Each Director
shall be elected by the shareholders, at the annual meeting of shareholders of
the Corporation, and shall be elected for the term of one year, and until his
successor shall be elected and shall qualify.
4.02 TERM OF DIRECTORS: The Directors named in the Certificate of
Incorporation shall hold office until the first annual meeting of shareholders,
and until their successors shall have been elected and qualified. At the first
annual meeting of shareholders and at each annual meeting thereafter, the
shareholders shall elect Directors to hold office until the next succeeding
annual meeting. Each Director shall hold office for the term for which he/she is
elected and until a successor shall have been elected and qualified.
4.03 REMOVAL OF DIRECTORS: Unless otherwise provided in the Certificate
of Incorporation, any or all of the Directors of the Corporation may be removed
with or without cause by the shareholders by the affirmative vote of the
majority of all shares then entitled to vote for the election of the Directors.
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4.04 QUORUM OF BOARD OF DIRECTORS AND COMMITTEES; ACTION OF DIRECTORS
WITHOUT A MEETING:
(1) The participation of Directors with a majority of the votes
of the entire Board of Directors, or of any Committee thereof, shall constitute
a quorum for the transaction of business.
(2) Any action required or permitted to be taken pursuant to
authorization voted at a meeting of the Board of Directors, or any Committee
thereof, may be taken without a meeting if, prior or subsequent to such action,
all members of the Board or such Committee, as the case may be, consent thereto
in writing and such written consents are filed with the minutes of the
proceedings of the Board or Committee.
4.05 PLACE OF BOARD OF DIRECTORS MEETING: Meetings of the Board of
Directors may be held either within or without the State of New Jersey, at such
times and places as the Board of Directors shall determine.
4.06 ANNUAL MEETING: An annual meeting of the newly elected Board of
Directors shall be held immediately following the annual meeting of shareholders
(or immediately following any adjournment thereof) at the place of such annual
meeting of shareholders, for the organization of such Board of Directors and for
the transaction of any other business as may conveniently and properly be
brought before such meeting.
4.07 Meetings of the Board of Directors:
(1) Regular meetings of the Board of Directors may be held with
or without notice. Special meetings of the Board of Directors shall be held upon
notice to the Directors and may be called by the President upon at least one
days notice to each Director either personally or by mail, wire, or telephone;
special meetings shall be called by the President or Secretary in a like manner
upon written request of one or more Directors. Notice of any meeting need not be
given to any Director who signs a written waiver of notice, whether before or
after the meeting. The attendance of any Director at a meeting, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute an effective waiver of notice by that Director.
Neither the business to be transacted at, nor the purpose of, any meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting.
(2) Where appropriate communication facilities are reasonably
available, any or all Directors shall have the right to participate in all or
any part of a meeting of the Board of Directors, or any Committee thereof, by
means of conference telephone or any means of communication by which all persons
participating in the meeting are able to hear each other.
4.08 ADJOURNMENT: A majority of the Directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place. Notice of
the adjournment shall be given to all Directors who were absent at the time of
the adjournment. Notice of an adjourned meeting need not be given to any
Directors who were present at the time of the adjournment only if the time and
place are fixed at the meeting adjourning and if the period of adjournment does
not exceed ten days in any one adjournment.
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4.09 POWERS OF DIRECTORS: The Board of Directors shall manage or direct
the management of the business and affairs of the Corporation. In addition to
the powers and authorities expressly conferred upon them by these By-laws, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by these By-laws directed or required
to be exercised or done by the shareholders.
4.10 COMPENSATION OF DIRECTORS: The Board, by the affirmative vote of a
majority of Directors in office and irrespective of any personal interest of any
of them, shall have authority to establish reasonable compensation of Directors
for services to the Corporation as Directors, officers or otherwise.
4.11 EXECUTIVE COMMITTEES: The Board of Directors, by resolution
adopted by a majority of the entire Board, may appoint from among its members an
executive committee and one or more other committees, each of which shall have
one or more members. Each such committee shall have and may exercise all the
authority delegated to it by the Board, except that no such committee shall
make, alter or repeal any By-law of the Corporation; elect or appoint any
Director, or remove any officer or Director; submit to shareholders any action
that requires shareholders' approval; or amend or repeal any resolution
theretofore adopted by the Board which by its terms is amendable or repealable
only by the Board.
Actions taken at a meeting of any such committee shall be reported to the
Board at its next meeting following such committee meeting; except that, when
the meeting of the Board is held within two days after the committee meeting,
such report shall, if not made at the first meeting, be made to the Board at its
second meeting following such committee meeting.
ARTICLE V
OFFICERS
5.01 OFFICERS: The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer, and, if desired, a Chairman of the Board,
one or more Vice Presidents, and such other officers as the Board deems
appropriate. The officers shall be elected by the Board of Directors at its
annual meeting and shall hold office for one year and until their successors are
elected and have qualified, subject to earlier termination by removal or
resignation. The Board may also choose such employees and agents as it shall
deem necessary, who shall hold their offices for such terms and shall have such
authority and shall perform such duties as from time to time shall be prescribed
by the Board.
Unless otherwise provided by law, the Certificate of Incorporation or these
By-laws, any two or more offices may be held by the same person but no officer
shall execute, acknowledge, or verify any instrument in more than one capacity
if such instrument is required by law or by these By-laws to be executed,
acknowledged, or verified by two or more officers.
5.02 SALARIES: The salaries of all officers, employees and agents of
the Corporation shall be fixed by the Board of Directors.
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5.03 REMOVAL: Any officer elected or appointed by the Board of
Directors may be removed by the Board with or without cause. An officer elected
by the shareholders may be removed, with or without cause, only by vote of the
shareholders but his authority to act as an officer may be suspended by the
Board for cause.
5.04 PRESIDENT: The President shall be the chief executive officer of
the Corporation; he/she shall preside at all meetings of the shareholders and
Directors; he/she shall have general and active management of the business of
the Corporation, shall see that all orders and resolutions of the Board are
carried into effect, subject, however, to the right of the Directors to delegate
any specific powers, except such as may be by statute exclusively conferred on
the President, or to any other officer or officers of the Corporation. He/she
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation. He/she shall be EX-OFFICIO a member of all committees,
and shall have the general powers and duties of supervision and management
usually vested in the office of President of the Corporation. He/she shall
present a report of the condition of the business of the Corporation at each
annual meeting of the shareholders and the Board of Directors.
5.05 VICE-PRESIDENT: The Vice President, if one has been appointed,
shall be vested with all the powers and be required to perform all the duties of
the President in his/her absence or refusal to act. He/she shall also exercise
such powers and perform such duties as may be properly delegated by the
President or the Board of Directors.
5.06 CHAIRMAN OF THE BOARD: The Chairman of the Board, if one has been
appointed, shall exercise such powers and perform such duties as shall be
provided in the resolution proposing that a Chairman of the Board be elected.
5.07 SECRETARY: The Secretary shall keep full minutes of all meetings
of the shareholders and Directors; he/she shall be EX-OFFICIO Secretary of the
Board of Directors; he/she shall attend all sessions of the Board, shall act as
clerk thereof, and record all votes and the minutes of all proceedings in a book
to be kept for that purpose; and shall perform like duties for the standing
committees when required. He/she shall give or cause to be given, notices of all
meetings of the shareholders of the Corporation and the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, under whose supervision he/she shall be.
5.08 CHIEF FINANCIAL OFFICER: The Chief Financial Officer shall keep,
or cause to be kept, the books and records of account of the Corporation. The
Chief Financial Officer shall deposit all monies and other valuables in the name
and to the credit of the Corporation with such depositories as may be designated
from time to time by resolution of the Board of Directors. He or she shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the President and the Board, whenever they request
it, an account of all of his transactions as Chief Financial Officer and of the
financial condition of the Corporation, and shall have such other powers and
perform such other duties as may be prescribed from time to time by the Board or
as the President may from time to time delegate.
5.09 TREASURER: The Treasurer shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation, and shall
deposit all moneys and other
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valuable effects in the name and to the credit of the Corporation, in such
depositories as may be designated by the Board of Directors. He/she shall
disburse the funds of the Corporation as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the President and
Directors, at the regular meetings of the Board, or whenever they may require
it, an account of all his/her transactions as Treasurer and of the financial
condition of the Corporation, and shall submit a full financial report at the
annual meeting of the shareholders.
5.10 ASSISTANT SECRETARY OR ASSISTANT TREASURER: Any Assistant
Secretary or Assistant Treasurer, if one has been appointed, shall be vested
with all the powers and be required to perform all the duties of the Secretary
or Treasurer, respectively, in his/her absence or refusal to act. He/she shall
also exercise such powers and perform such duties as may be properly delegated
by the President or the Board of Directors.
ARTICLE VI
VACANCIES
6.01 DIRECTORS: Any directorship not filled at the annual meeting, any
vacancy, however caused, occurring in the Board, and newly created directorships
resulting from an increase in the authorized number of Directors, may be filled
by the affirmative vote of a majority of the remaining Directors even though
less than a quorum of the Board, or by a sole remaining Director. A Director so
elected by the Board shall hold office until his successor shall have been
elected and qualified. If, for any reason, the Corporation shall at any time
have no Directors then in office, any shareholder may call a special meeting of
shareholders for the election of Directors and, over his/her signature, shall
give notice of such meeting in accordance with these By-laws.
6.02 OFFICERS: Any vacancy occurring among the officers, however
caused, shall be filled by the Board of Directors.
6.03 RESIGNATIONS: Any Director or other officer may resign by written
notice to the Corporation. The resignation shall be effective upon receipt
thereof by the Corporation or at such subsequent time as shall be specified in
the notice of resignation.
ARTICLE VII
SHARE CERTIFICATES
7.01 CERTIFICATES: The share certificates of the Corporation shall be
in such form as the Board of Directors may from time to time prescribe and shall
be numbered consecutively and registered in the transfer records of the
Corporation as they are issued. When issued, they shall bear the holder's name,
the number of shares, the date of issue, and shall be signed by the President of
the Corporation. The Share certificates may also be countersigned by the
Secretary of the Corporation and may be sealed with the corporate seal or a
facsimile thereof. Any or all signatures upon a certificate may be a facsimile.
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7.02 UNCERTIFICATED SHARES: The Board of Directors may provide that
some or all of the shares of any class or series shall be represented by
uncertificated shares. Within a reasonable time after the issuance or transfer
of uncertificated shares, the Corporation shall send to the registered owner
thereof a written notice containing the information required to be set forth or
stated on certificates as provided in Chapter 7 of the Act.
7.03 TRANSFER OF SHARES: 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 succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, and cancel the old certificate. Every such transfer
shall be entered on the transfer book of the Corporation which shall be kept at
its principal office. No transfer shall be made within fifteen days next
preceding the annual meeting of shareholders.
7.04 FRACTIONAL SHARES. The Corporation may, but shall not be required
to, issue certificates for fractions of a share where necessary to effect
authorized transactions, or the Corporation may pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the Corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a shareholder except as therein
provided.
7.05 LOSS OF CERTIFICATES: In the event that a share certificate shall
be lost, destroyed or mutilated, a new certificate may be issued therefor upon
such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
ARTICLE VIII
BOOKS AND ACCOUNTS
8.01 RECORDS: The Corporation shall keep books and records of account
and minutes of the proceedings of the shareholders, Board of Directors and
executive committee, if any. Such books, records and minutes may be kept outside
this State. The Corporation shall keep at its principal office, its registered
office, or at the office of its transfer agent, a record or records containing
the names and addresses of all shareholders, the number, class and series of
shares held by each and the dates when they respectively became the owners of
record thereof. Any of the foregoing books, minutes or records may be in written
form or in any other form capable of being converted into readable form within a
reasonable time.
8.02 INSPECTION: Any person who shall have been a shareholder of record
of the Corporation for at least six months immediately preceding his demand, or
any person holding, or so authorized in writing by the holders of, at least five
percent of the outstanding shares of any class or series, upon at least five
days written demand shall have the right for any proper purpose to examine in
person or by agent or attorney, during usual business hours, the minutes of the
proceedings of the shareholders and record of shareholders and to make extracts
therefrom at the places where the same are kept.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 MONETARY DISBURSEMENTS: All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
9.02 FISCAL YEAR: The Board of Directors shall be authorized to choose
the initial fiscal year of the Corporation, and to change that fiscal year from
time to time.
9.03 DIVIDENDS: The Board of Directors may declare and pay dividends
upon the outstanding shares of the Corporation from time to time and to such
extent as they deem advisable, in the manner and upon the terms and conditions
provided by statute and the Certificate of Incorporation.
9.04 RESERVE: Before payment of any dividend there may be set aside
such sum or sums as the Directors, from time to time in their absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Directors shall think conducive to
the interests of the Corporation, and the Directors may abolish any such reserve
in the manner in which it was created.
9.05 GIVING NOTICE: Whenever written notice is required to be given to
any person, it may be given to such person, either personally or by sending a
copy thereof through the mail. If notice is given by mail, the notice shall be
deemed to be given when deposited in the mail addressed to the person to whom it
is directed at his last address as it appears on the records of the Corporation,
with postage pre-paid thereon. Such notice shall specify the place, day and hour
of the meeting and, in the case of a shareholders' meeting, the general nature
of the business to be transacted.
In computing the period of time for the giving of any notice required or
permitted by statute, or by the Certificate of Incorporation or these By-laws or
any resolution of Directors or shareholders, the day on which the notice is
given shall be excluded, and the day on which the matter noticed is to occur
shall be included.
9.06 LOANS TO DIRECTORS, OFFICERS OR EMPLOYEES: The Corporation may
lend money to, or guarantee any obligation of, or otherwise assist, any
Director, officer or employee of the Corporation or of any subsidiary, whenever
it may reasonably be expected to benefit the Corporation.
9.07 DISALLOWED COMPENSATION: Any payments made to an officer or
employee of the Corporation as salary, commission, bonus, interest or rent,
which shall be disallowed in whole or in part as a deductible expense by the
Internal Revenue Service, shall be reimbursed by such officer or employee to the
Corporation to the full extent of such disallowance. It shall be the duty of the
Directors, as a Board, to enforce payment of each such amount disallowed. In
lieu of payment by the officer or employee, subject to the determination of the
Directors, proportionate
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amounts may be withheld from his future compensation payments until the amount
owed to the Corporation has been recovered.
ARTICLE X
AMENDMENTS
10.01 AMENDMENTS: The Board of Directors shall have the power to adopt,
amend and repeal these By-laws, but By-laws adopted by the Board may be amended
or repealed, and new By-laws may be made, by the affirmative vote of a majority
of the holders of the voting power of all of the then outstanding shares of
capital stock entitled to vote generally in the election of Directors.
Furthermore, the shareholders may prescribe that any By-law made by them shall
not be altered, amended or repealed by the Board of Directors.
ARTICLE XI
INDEMNIFICATION AND INSURANCE
11.01 INDEMNIFICATION: Every person who was or is 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, by reason
of the fact that he or a person of whom he is the legal representative is or was
a Director or officer of the Corporation or is or was serving at the request of
the Corporation or for its benefit as a Director or officer of another
Corporation, or as a representative in another enterprise, shall be indemnified
and held harmless to the fullest extent permissible under and pursuant to any
procedure specified in the Act, as amended from time to time, against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
him in connection therewith. Such right of indemnification shall be a contract
that may be enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any right which such Directors,
officers or representatives may have or hereafter acquire and, without limiting
the generality of such statement, they shall be entitled to their respective
rights of indemnification under any agreement, vote of shareholders, provision
of law or otherwise, as well as their rights hereunder.
11.02 INSURANCE: The Board of Directors may cause the Corporation to
purchase and maintain insurance on behalf of any person who 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 as its
representative in a partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred in any such
capacity or arising out of such status, whether or not the Corporation would
have the power to indemnify such person.
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