FAMILY RESTAURANTS FRANCHISE, INC.
BY-LAWS
INDEX
PAGE
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SECTION 1 - OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Registered Office . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 - STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1. Time and Place of Meetings. . . . . . . . . . . . . . . . . 1
Section 2.2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.3. Special Meetings. . . . . . . . . . . . . . . . . . . . . . 1
Section 2.4. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . 1
Section 2.5. Quorum; Adjournment of Meeting. . . . . . . . . . . . . . . 2
Section 2.6. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.7. Informal Action by Stockholders . . . . . . . . . . . . . . 2
Section 2.8. Significant Stockholder Actions . . . . . . . . . . . . . . 2
Section 2.9. One Share One Vote. . . . . . . . . . . . . . . . . . . . . 3
SECTION 3 - DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.1. General Powers. . . . . . . . . . . . . . . . . . . . . . . 3
Section 3.2. Number, Qualification and Tenure. . . . . . . . . . . . . . 3
Section 3.3. Vacancies; Resignations.. . . . . . . . . . . . . . . . . . 3
Section 3.4. Place of Meetings . . . . . . . . . . . . . . . . . . . . . 3
Section 3.5. Newly-Elected Board . . . . . . . . . . . . . . . . . . . . 3
Section 3.6. Regular Meetings. . . . . . . . . . . . . . . . . . . . . . 4
Section 3.7. Special Meetings. . . . . . . . . . . . . . . . . . . . . . 4
Section 3.8. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.9. Organization. . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.10. Committees. . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.11. Action without Meeting. . . . . . . . . . . . . . . . . . . 4
Section 3.12. Attendance by Telephone . . . . . . . . . . . . . . . . . . 4
Section 3.13. Compensation. . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4 - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.1. Enumeration . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.2. Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.3. Term of Office. . . . . . . . . . . . . . . . . . . . . . . 5
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Section 4.4. Chairman. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.5. President . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.6. Vice President. . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.7. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.8. Assistant Secretary.. . . . . . . . . . . . . . . . . . . . 6
Section 4.9. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.10. Assistant Treasurer.. . . . . . . . . . . . . . . . . . . . 6
Section 4.11. Other Duties. . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5 - CERTIFICATE OF STOCK AND OTHER STOCKHOLDER MATTERS . . . . . . . . 6
Section 5.1. Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.2. Replacement.. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.3. Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.4. Stockholders Entitled to Notice or to Vote. . . . . . . . . 7
Section 5.5. Stock Ledger Determinative of Dividend Distributions and
Voting Entitlements . . . . . . . . . . . . . . . . . . . . 7
SECTION 6 - INDEMNIFICATION OF DIRECTORS AND OFFICERS. . . . . . . . . . . . . 8
Section 6.1. Good Faith Requirement. . . . . . . . . . . . . . . . . . . 8
Section 6.2. Expenses Indemnified. . . . . . . . . . . . . . . . . . . . 8
Section 6.3. Determination of Indemnification. . . . . . . . . . . . . . 8
Section 6.4. Expenses Paid in Advance of Determination of
Indemnification . . . . . . . . . . . . . . . . . . . . . . 8
Section 6.5. Indemnification Provisions Not Exclusive. . . . . . . . . . 9
Section 6.6. Directors and officers Liability Insurance. . . . . . . . . 9
SECTION 7 - DIVIDENDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7.1. Declaration of Dividends. . . . . . . . . . . . . . . . . . 9
Section 7.2. Reserves for Dividends. . . . . . . . . . . . . . . . . . . 9
SECTION 8 - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8.1. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8.2. Corporate Seal. . . . . . . . . . . . . . . . . . . . . . .10
Section 8.3. Form of Notice. . . . . . . . . . . . . . . . . . . . . . .10
Section 8.4. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . .10
Section 8.5. Corporation Checks. . . . . . . . . . . . . . . . . . . . .10
Section 8.6. Protection of Corporate Books . . . . . . . . . . . . . . .10
SECTION 9 - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Section 9.1. Amendments of By-Laws . . . . . . . . . . . . . . . . . . .10
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B Y - L A W S
OF
FAMILY RESTAURANTS FRANCHISE INC.
SECTION 1.
OFFICES
SECTION a.. REGISTERED OFFICE. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION b.. OTHER OFFICES. The corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors ("Board") may from time to time determine or the business of the
corporation may require.
SECTION 2.
STOCKHOLDERS
SECTION a.. TIME AND PLACE OF MEETINGS. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be designated,
from time to time, by the Board. In the absence of any such designation by the
Board, each such meeting shall be held at the principal office of the
corporation in Wilmington, Delaware.
SECTION b.. ANNUAL MEETINGS. An annual meeting of stockholders shall be
held for the purpose of electing directors to serve on the Board and transacting
such other business as may properly be brought before the meeting. The date of
the annual meeting shall be determined by the Board.
SECTION c.. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law, may be called by
the Chairman or the President and shall be called by the Secretary or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
SECTION d.. NOTICE OF MEETINGS. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given not
less than ten (10) nor more than sixty days
(60) before the date of the meeting, to each stockholder entitled to vote at
such meeting. The notice of any special meeting of stockholders shall state the
purpose or purposes for which the meeting is called.
SECTION e.. QUORUM; ADJOURNMENT OF MEETING. The holders of a majority of
the stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
law. If a quorum is not present or represented, the holders of the stock
present in person or represented by proxy at the meeting and entitled to vote
thereat shall have the power, by the affirmative vote of the holders of a
majority of such stock, to adjourn the meeting to another time and/or place,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION f.. VOTING. At all meetings of the stockholders, each stockholder
shall be entitled to vote, in person or by proxy, the shares of voting stock
owned by such stockholder of record on the record date for the meeting. When a
quorum is present or represented at any meeting, the vote of the holders of a
majority of the stock having voting power 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 law 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 voting.
SECTION g.. INFORMAL ACTION BY STOCKHOLDERS. Any action required to be
taken at a meeting of the stockholders or any other action which may be taken at
a meeting of the stockholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, - shall be signed by all of the
stockholders entitled to vote with respect to the subject matter thereof.
SECTION h.. SIGNIFICANT STOCKHOLDER ACTIONS. The affirmative vote of
ninety-five (95) percent (or eighty-five (85) percent if Donald N. Smith ceases
for any reason to be the Chairman of the corporation) of the issued and
outstanding capital stock of the corporation shall be required for any of the
following "Significant Stockholder Actions":
i. the amendment or repeal of the corporation's Certificate of
Incorporation or By-Laws or the adoption of a new or restated
Certificate of Incorporation or new By-Laws;
ii. any merger or consolidation to which the corporation or any subsidiary
of the corporation is a constituent corporation;
iii. any sale, lease or exchange of all or substantially all of the
property and assets of the corporation; and
iv. dissolution or liquidation of the corporation.
SECTION i.. ONE SHARE ONE VOTE. Each stockholder shall at every meeting
of the stockholders
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be entitled to one vote in person or by proxy for each share of stock having
voting power held by such stockholder, but no proxy shall be voted after three
(3) years from its date unless the proxy provides for a longer period.
SECTION 3.
DIRECTORS
SECTION a.. GENERAL POWERS. The business and affairs of the corporation
shall be managed and controlled by or under the direction of the Board, which
may exercise all such powers of the corporation and do all such lawful acts and
things as are not by law or by Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
SECTION b.. NUMBER, QUALIFICATION AND TENURE. The Board of Directors
shall consist of up to five (5) members (Directors). The Directors shall be
elected at the annual meeting of the stockholders, except as provided in
Section 3.3 and each Director elected shall hold office until his successor is
elected and qualified or until his earlier resignation or removal. Directors
need not be stockholders.
SECTION c.. VACANCIES; RESIGNATIONS. Vacancies and newly created
directorships resulting from any increase in the number of Directors may be
filled by a majority of the Directors then in office though less than a quorum,
and each Director so chosen shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. If there are no
Directors in office, then an election of Directors may be held in the manner
provided by law. Any director may resign at any time and such resignation may
be made contingent upon the occurrence of a future event. such resignation shall
be made in writing and shall take effect at the later of the date designated in
the written resignation and the time of its receipt by the Chairman or the
Secretary of the corporation. Acceptance of a resignation shall not be
necessary to make it effective.
SECTION d.. PLACE OF MEETINGS. The Board may hold meetings, both regular
and special, either within or without the State of Delaware.
SECTION e.. NEWLY-ELECTED BOARD. The first meeting of each newly-elected
Board shall be held at such time and place as shall be fixed by the stockholders
at the annual meeting, and no notice of such meeting shall be necessary to the
newly elected Directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the stockholders to fix
the time and place of such first meeting of the newly elected Board, or in the
event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board.
SECTION f.. REGULAR MEETINGS. The Board shall hold a regular meeting, to
be known as the annual meeting, immediately following each annual meeting of the
stockholders. Other regular meetings of the Board shall be held at such time
and at such place as shall from time to time be
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determined by the Board. No notice of regular meetings need be given.
SECTION g.. SPECIAL MEETINGS. Special meetings of the Board may be called
by the Chairman or the President. Special meetings shall also be called by the
Secretary on written request of any Director. No notice of special meetings
need be given.
SECTION h.. QUORUM. At all meetings of the Board, a majority of the total
number of Directors shall constitute a quorum for the transaction of business
and the act of a majority of the Directors present at any meeting at which there
is a quorum shall be the act of the Board except as may be otherwise
specifically provided by these By-Laws, the -Certificate of Incorporation or by
' law. If a quorum shall not be present at any meeting of the Board, the
Directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION i.. ORGANIZATION. The Chairman, if elected, shall act as chairman
at all meetings of the Board. If the Chairman is not elected or, if elected, is
not present, the President or, in the absence of the President, a Vice Chairman
(who is also a member of the Board and, if more than one, in order designated by
the Board or, in the absence of such designation, in order of their election),
If any, or if no such Vice Chairman is present, a Director chosen by a majority
of the Directors present, shall act as chairman at meetings of the Board.
SECTION j.. COMMITTEES. The Board may, by resolution adopted by a
majority of the whole Board, appoint one or more of its members to constitute
one or more committees and such committees shall have such powers and duties
(without further approval of the Board) as the Board shall prescribe, as such
powers and duties may be limited by General Corporation Law of the State of
Delaware.
SECTION k.. ACTION WITHOUT MEETING. Unless otherwise restricted by the
certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
SECTION l.. ATTENDANCE BY TELEPHONE. Members of the Board, or of any
committee designated by the Board, may participate in a meeting of the Board, or
any 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, and such participation in a meeting shall constitute presence in
person at the meeting.
SECTION m.. COMPENSATION. The Board shall have the authority to fix the
compensation of Directors, which may include their expenses, if any, of
attendance at each meeting of the Board or of a committee.
SECTION 4.
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OFFICERS
SECTION a.. ENUMERATION. The officers of the corporation shall be chosen
by the Board and shall be a Chairman, President, a Secretary, and a Treasurer.
The Board may also elect one or more Vice Chairmen, one or more Vice Presidents,
one or more Assistant Secretaries and Assistant Treasurers and such other
officers and agents as it shall deem appropriate. Any-number of offices may be
held by the same person.
SECTION b.. SALARIES. The salaries of all officers of the corporation
shall be fixed by the Board.
SECTION c.. TERM OF OFFICE. The officers of the corporation shall be
elected at the annual meeting of the Board and shall hold office until their
successors are elected and qualified or until their earlier resignation, removal
or death. Any officer elected or appointed by the Board may be removed at any
time by the Board. Any vacancy occurring In any office of the corporation
required by this section shall be filled by the Board, and any vacancy in any
other office may be filled by the Board.
SECTION d.. CHAIRMAN. The Chairman shall preside, when present, at each
meeting of the Board and shall perform such other duties and the Board and shall
perform such other duties and have such powers as the Board may from time to
time prescribe. The Chairman shall have general supervision, direction and
control of the business and affairs of the corporation, subject to the control
of the Board, shall preside at meetings of stockholders and shall have such
other functions, authority and duties as customarily appertain to the office of
the chief executive of a business corporation or as may be prescribed by the
Board.
SECTION e.. PRESIDENT. During any period when there shall be an office of
Chairman, the President shall have such functions, authority and duties as may
be prescribed by the Board or the chairman. During any period when there shall
not be an office of chairman, the President shall have the functions, authority
and duties provided for the Chairman.
SECTION f.. VICE PRESIDENT. The Vice President shall perform, such duties
and have such other powers as may from time to time be prescribed by the Board,
the Chairman or the President.
SECTION g.. SECRETARY. The Secretary shall keep a record of all
proceedings of the stockholders of the corporation and of the Board, and shall
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice, if any, of all meetings of the
stockholders and shall perform such other duties as may be prescribed by the
Board, the Chairman or the President. The Secretary shall have custody of the
corporate seal of the corporation and the Secretary or in the absence of the
Secretary any Assistant Secretary, shall have the authority to affix the same to
any Instrument requiring it, and when so affixed it may be attested by the
signature of the Secretary or an Assistant Secretary. The Board may give
general authority to any other officer to affix the seal of the corporation and
to attest such affixing of the seal.
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SECTION h.. ASSISTANT SECRETARY. The Assistant Secretary or if there be
more than one, the Assistant Secretaries in the order determined by the Board
(or if there be no such determination, then in order of their election), shall,
in the absence of the secretary or in the event of the Secretary's inability or
refusal to act, perform the duties and exercise the powers of the Secretary and
shall perform such other duties as may from time to time be prescribed by the
Board, the Chairman, or the President.
SECTION i.. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable assets in the name and to the credit of
the corporation in such depositories as may be designated by the Board. The
Treasurer 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
Chairman, the President and the Board, at its regular meetings or when the Board
so requires, an account of all transactions as Treasurer and of the financial
condition of the corporation. The Treasurer shall perform such other duties as
may from time to time be prescribed by the Board, the Chairman, or the
President.
SECTION j.. ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board (or if there be no such determination, then in order of their election),
shall, in absence of the Treasurer or in the event of the Treasurer's Inability
or refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as may from time
to time be prescribed by the Board, the Chairman., the President, or the
Treasurer.
SECTION k.. OTHER DUTIES. Any officer who is elected or appointed from
time to time BY the Board and whose duties are not specified in these By-Laws
shall perform such duties and have such powers as may be prescribed from time to
time by the Board, the Chairman or the President.
SECTION 5.
CERTIFICATE OF STOCK AND OTHER STOCKHOLDER MATTERS
SECTION a.. FORM. The shares of the corporation shall be represented by
certificates; provided, however, that the Board may provide by resolution or
resolutions that some or all of any or all classes or series of the
corporation's stock shall be uncertificated shares. Certificates of stock in
the corporation, if any, shall be signed by or in the name of the corporation by
the Chairman 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. Where a certificate is countersigned by a transfer agent, other
than the corporation or an employee of the corporation, or by a registrar, the
signatures of the Chairman, the President or a ' Vice President and the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
may be facsimiles. 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, the certificate may be issued by the corporation with the
same effect as if such officer, transfer agent or registrar were such
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officer, transfer agent or registrar at the date of its issue.
SECTION b.. REPLACEMENT. In case of the loss, destruction or theft of a
certificate for any stock of the corporation, a new certificate of stock or
uncertificated shares in place of any certificate therefor issued by the
corporation may be issued upon satisfactory proof of such loss, destruction or
theft and upon such terms as the Board may prescribe. The Board may in its
discretion require the owner of the lost, destroyed or stolen certificate, or
his legal representative, to give the corporation a bond, in such sum and in
such form and with such -surety or sureties as it may direct, to indemnify the
corporation against any claim that may be made against it with respect to a
certificate alleged to have been lost, destroyed or stolen.
SECTION c.. TRANSFER. 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 of
stock or uncertificated shares in place of any certificate therefor Assured by
the corporation to the person entitled thereto, cancel the old certificate and
record the transaction on its books.
SECTION d.. STOCKHOLDERS ENTITLED TO NOTICE OR TO VOTE. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of the stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any lawful action, the Board may fix in advance, a record
date which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) 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 may fix a new record date for the adjourned
meeting.
SECTION e.. STOCK LEDGER DETERMINATIVE OF DIVIDEND DISTRIBUTIONS AND
VOTING ENTITLEMENTS. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends and other distributions, and to vote as such owner, and shall
not be bound to recognize any equitable or other claim to, or interest in, such
share or shares on the part of any other person, whether or not it shall have
express or either notice thereof, except as otherwise provided by the laws of
the State of Delaware.
SECTION 6.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION a.. GOOD FAITH REQUIREMENT. The corporation shall indemnify any
person who was or is a party or is threatened to be made 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,
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employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding 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, and, with respect to any criminal action or
proceeding, had no reasonable cause 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 CONTENDERS or its equivalent,
shall not, of itself, create a presumption that the person 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, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
SECTION b.. EXPENSES INDEMNIFIED. 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 6.1 of these By-Laws, 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 c.. DETERMINATION OF INDEMNIFICATION. Any indemnification under
Section 6.1 of these By-Laws (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
section 6.1 of these By-Laws. Such determination shall be made (1) by the Board
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the stockholders.
SECTION d.. EXPENSES PAID IN ADVANCE OF DETERMINATION OF INDEMNIFICATION.
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 action,
suit or proceeding as authorized by the Board in the manner provided in section
6.3 of these By-Laws upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he or she is entitled to be Indemnified by the
corporation under these By-Laws.
SECTION e.. INDEMNIFICATION PROVISIONS NOT EXCLUSIVE. The Indemnification
provided by the By-Laws shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any 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 f.. DIRECTORS AND OFFICERS LIABILITY INSURANCE. The corporation
may 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 as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any
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liability asserted against him and Incurred by him in any such capacity, or
arising out of his status a such, whether or not he would be entitled to
indemnity against such liability under the provisions of these By-Laws.
SECTION 7.
DIVIDENDS
SECTION a.. DECLARATION OF DIVIDENDS. Dividends may be declared by the
Board at any regular or special meeting, pursuant to law and in accordance with
the voting requirements stated in these By-Laws. Dividends may be paid in cash,
in property or in shares of the corporation's capital stock.
SECTION b.. RESERVES FOR DIVIDENDS. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board from time to time, in its absolute discretion,
deems proper as a reserve or reserve to meet contingencies, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
Board determine promotes the interest of the corporation and the Board may
modify or abolish any such reserve in the manner in which it was created.
SECTION 8.
GENERAL PROVISIONS
SECTION a.. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board.
SECTION b.. CORPORATE SEAL. The corporate seal shall be in such form as
may be approved from time to time by the Board. The seal. may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
SECTION c.. FORM OF NOTICE. Whenever, under the provisions of the
applicable statutes or of the Certificate of Incorporation or of these By-Laws,
notice is required to be given to any director or stockholder, personal notice
is not required; any notice shall be given in writing either in person, by air
courier service, or mail addressed to such director or stockholder at his
address as it appears on the records of the corporation, with postage thereon
prepaid if sent by air courier service or mail, and such notice shall be deemed
to be given when handed to such director or stockholder, one (1) business day
after being delivered to an air courier service, or two (2) business days after
being deposited in the United States mail.
SECTION d.. WAIVER OF NOTICE. Whenever any notice is required to be given
under law or the provisions of the Certificate of Incorporation or these By-
Laws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of
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notice of such meeting, except when the person attends the meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened. Neither the business to be transacted at nor the purpose of, any
regular or special meeting of the stockholders or directors need to be specified
in any written waiver of notice.
SECTION e.. CORPORATION CHECKS. All checks or other orders for the payment
of money and notes of the corporation shall be signed by such officer or
officers or such other person or persons as the Board my from time to time
designate.
SECTION f.. PROTECTION OF CORPORATE BOOKS. As provided under applicable
laws of the State of Delaware, or any successor laws the corporation shall make
available to the stockholders the books and records of the corporation,
including without limitation, periodic financial statements of the corporation.
SECTION 9.
AMENDMENTS
SECTION a.. AMENDMENTS OF BY-LAWS. These By-Laws may be altered, amended
new By-Laws may be adopted by the Board. The fact that the alter, repeal or
adopt the By-Laws has been conferred upon the divest stockholders of same
powers.
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