Exhibit 3.4(b)
BY-LAWS
OF
BEAZER HOMES HOLDINGS CORP.
A DELAWARE CORPORATION
TABLE OF CONTENTS
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Article I -- Stockholders............................................ 1
1. Annual Meetings....................................... 1
2. Special Meetings...................................... 1
3. Quorums............................................... 2
4. Organization.......................................... 2
5. Voting; Proxies: Required Vote........................ 2
6. Inspectors............................................ 3
Article II -- Board of Directors..................................... 4
1. General Powers........................................ 4
2. Qualification; Number; Term; Remuneration............. 4
3. Quorum and Manner of Voting........................... 4
4. Places of Meetings.................................... 4
5. Annual Meeting........................................ 4
6. Regular Meetings...................................... 5
7. Special Meetings...................................... 5
8. Notice of Meetings.................................... 5
9. Organization.......................................... 5
10. Resignation........................................... 5
11. Vacancies............................................. 5
12. Action by Written Consent............................. 5
13. Electronic Communication.............................. 5
Article III -- Committees............................................ 6
1. Appointment........................................... 6
2. Procedures; Quorum and Manner of Acting............... 6
3. Action by Written Consent............................. 6
4. Electronic Communication.............................. 6
5. Termination........................................... 6
Article IV -- Officers............................................... 6
1. Election and Qualifications........................... 6
2. Term of Office and Remuneration....................... 7
3. Resignation; Removal.................................. 7
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4. Powers and Duties of Officers......................... 7
Article V -- Contracts, Etc.......................................... 8
1. Contracts............................................. 8
2. Proxies; Powers of Attorney; Other Instruments........ 8
Article VI -- Books and Records...................................... 9
1. Location.............................................. 9
2. Addresses of Stockholders............................. 9
3. Fixing Date for Determination of Stockholders of
Record................................................ 9
Article VII Certificates Representing Stock.......................... 10
1. Certificates, Signatures.............................. 10
2. Transfers of Stock.................................... 10
3. Fractional Shares..................................... 10
4. Lost, Stolen or Destroyed Certificates................ 11
Article VIII -- Dividends............................................ 11
Article IX -- Ratification........................................... 11
Article X -- Corporate Seal.......................................... 12
Article XI -- Fiscal Year............................................ 12
Article XII -- Waiver of Notice...................................... 12
Article XIII -- Amendments........................................... 12
Article XIV -- Indemnification....................................... 12
1. Power to Indemnify in Action, Suits or Proceedings
Other Than Those By or In The Right of the
Corporation........................................... 12
2. Power to Indemnify in Actions, Suits or Proceedings
By or In The Right of the Corporation................. 13
3. Authorization of Indemnification...................... 13
4. Good Faith Defined.................................... 14
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5. Indemnification By A Court............................ 14
6. Expenses Payable In Advance........................... 14
7. Non-Exclusivity and Survival of Indemnification....... 14
8. Meaning of "other enterprises" in connection with
Employee Benefit Plans, etc........................... 15
9. Insurance............................................. 15
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ARTICLE I -- STOCKHOLDERS
1. Annual Meetings.
(a) All meetings of the Stockholders for the election of
directors shall be held in the County of New Castle, State of Delaware, at such
place as may be fixed from time to time by the Board of Directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of Stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
(b) Annual meetings of Stockholders shall be held on such date
and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a Board of Directors, and transact such other business as may
properly be brought before the meeting.
(c) Written notice of the annual meeting stating the place,
date, and hour of the meeting shall be given to each Stockholder entitled to
vote at such meeting not less than ten days nor more than sixty days prior to
the date of the meeting.
(d) The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Stockholder who is
present. The stock ledger shall be the only evidence as to the Stockholders
entitled to examine the stock ledger, the list required by this Section 1 or the
books of the Corporation, or to vote in person or by proxy at any meeting of
Stockholders.
2. Special Meetings.
(a) Special meetings of the Stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation of the Corporation, may be called by the President and shall be
called by the President or Secretary at the request in writing of a majority of
the Board of Directors, or at the request in writing of a Stockholder or
Stockholders owning a majority in amount of the entire capital stock of
the Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
(b) Written notice of a special meeting stating the place,
date, and hour of the meeting and, in general terms, the purpose or purposes for
which the meeting is called, shall be given not less than ten days nor more than
sixty days prior to the date of the meeting, to each Stockholder entitled to
vote at such meeting. Whenever the directors shall fail to fix such place, the
meeting shall be held at the principal executive offices of the Corporation.
(c) Business transacted at any special meeting of Stockholders
shall be limited to the purpose or purposes stated in the notice.
3. Quorums.
(a) 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 statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the Stockholders, the Stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. 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 meeting as originally
notified. If the adjournment is for more than thirty 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. When a quorum is once present it is not broken by the
subsequent withdrawal of any Stockholder.
(b) When a quorum is present 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 on which by express provision of the Delaware General
Corporation Law, the Certificate of Incorporation or these By-Laws, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
4. Organization. Meetings of Stockholders shall be presided over by
the Chairman, if any, or if none or in the Chairman's absence the President, if
any, or if none or in the President's absence, by a Chairman to be chosen by the
Stockholders entitled to vote who are present in person or by proxy at the
meeting. The Secretary of the Corporation, or in the Secretary's absence an
Assistant Secretary, shall act as Secretary of every meeting, but
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if neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint any person present to act as Secretary of
the meeting.
5. Voting; Proxies: Required Vote.
(a) At each meeting of Stockholders, every Stockholder shall
be entitled to vote in person or by proxy appointed by an instrument in writing,
subscribed by such Stockholder or by such Stockholder's duly authorized
attorney-in-fact but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period), and, unless
the Certificate of Incorporation provides otherwise, shall have one vote for
each share of stock entitled to vote registered in the name of such Stockholder
on the books of the Corporation on the applicable record date fixed pursuant to
these By-Laws. At all elections of directors the voting may but need not be by
ballot and the affirmative vote of holders of a plurality of the stock present
in person or represented by proxy and entitled to vote on such election shall
elect such directors. Except as otherwise required by law or the Certificate of
Incorporation, any other action shall be authorized by the affirmative vote of
holders of a majority of the stock present in person or represented by proxy and
entitled to vote on such matter.
(b) Any action required or permitted to be taken at any
meeting of Stockholders may, except as otherwise required by law or the
Certificate of Incorporation, be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted, and the writing or
writings are filed with the permanent records of the Corporation. Prompt notice
of the taking of corporate action without a meeting by less than unanimous
written consent shall be given to these Stockholders who have not consented in
writing.
(c) Where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to vote on the
matter and the affirmative vote of the majority of shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class, unless otherwise provided in the Corporation's Certificate of
Incorporation.
6. Inspectors. The Board of Directors, in advance of any meeting,
may, but need not, appoint one or more inspectors of election to act at the
meeting or any adjournment thereof. If an inspector or inspectors are not so
appointed, the person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails
to appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by
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the person presiding thereat. Each inspector, if any, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his or her ability. The inspectors, if any, shall
determine the number of shares of stock outstanding and the voting power of
each, the shares of stock represented at the meeting, the existence of a quorum,
and the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all Stockholders. On request of the person presiding at
the meeting, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question or matter determined by such inspector or inspectors
and execute a certificate of any fact found by such inspector or inspectors.
ARTICLE II -- BOARD OF DIRECTORS
1. General Powers. The business, property and affairs of the
Corporation shall be managed by, or under the direction of, the Board of
Directors.
2. Qualification; Number; Term; Remuneration.
(a) Each director shall be at least 18 years of age. A
director need not be a Stockholder, a citizen of the United States, or a
resident of the State of Delaware. The number of directors constituting the
entire Board of Directors shall be one or such other number as may be fixed from
time to time by the Board of Directors or the Stockholders. One of the directors
may be selected by the Board of Directors to be its Chairman, who shall preside
at meetings of the Stockholders and the Board of Directors and shall have such
other duties, if any, as may from time to time be assigned by the Board of
Directors. In the absence of formal selection, the President of the Corporation
shall serve as Chairman. The use of the phrase "entire Board" herein refers to
the total number of directors which the Corporation would have if there were no
vacancies.
(b) Directors who are elected at an annual meeting of
Stockholders, and directors who are elected in the interim to fill vacancies and
newly created directorships, shall hold office until the next annual meeting of
Stockholders and until their successors are elected and qualified or until their
earlier resignation or removal.
(c) Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary for
serving as director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing Committees may be allowed like compensation for
attending Committee meetings.
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3. Quorum and Manner of Voting. Except as otherwise provided by law,
a majority of the entire Board of Directors shall constitute a quorum. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting from time to time to another time and place without notice.
The vote of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
4. Places of Meetings. Meetings of the Board of Directors may be
held at any place within or without the State of Delaware, as may from time to
time be fixed by resolution of the Board of Directors, or as may be specified in
the notice of meeting.
5. Annual Meeting. Following the annual meeting of Stockholders, the
newly elected Board of Directors shall meet for the purpose of the election of
officers and the transaction of such other business as may properly come before
the meeting. Such meeting may be held without notice immediately after the
annual meeting of Stockholders at the same place at which such Stockholders'
meeting is held.
6. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as the Board of Directors shall from time
to time by resolution determine.
7. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board, President, or by a
majority of the directors then in office.
8. Notice of Meetings. A notice of the place, date and time and the
purpose or purposes of each meeting of the Board of Directors shall be given to
each director by mailing the same at least two days before the meeting, or by
telephoning or faxing the same or by delivering the same personally not later
than the day before the day of the meeting.
9. Organization. At all meetings of the Board of Directors, the
Chairman or in the Chairman's absence or inability to act, the President, or in
the President's absence, a Chairman chosen by the directors, shall preside. The
Secretary of the Corporation shall act as secretary at all meetings of the Board
of Directors when present, and, in the Secretary's absence, the presiding
officer may appoint any person to act as Secretary.
10. Resignation. Any director may resign at any time upon written
notice to the Corporation and such resignation shall take effect upon receipt
thereof by the President or Secretary, unless otherwise specified in the
resignation. Any or all of the director may be removed with or without cause, by
the holders of a majority of the shares of stock outstanding and entitled to
vote for the election of directors.
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11. Vacancies. Unless otherwise provided in these By-Laws, vacancies
on the Board of Directors, whether caused by resignation, death,
disqualification, removal, an increase in the authorized number of directors or
otherwise, may be filled by the affirmative vote of a majority of the remaining
directors, although less than a quorum, or by a sole remaining director, or at a
special meeting of the Stockholders, by vote of the Stockholders required for
the election of directors generally.
12. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a meeting
if all the directors consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors.
13. Electronic Communication. Any member or members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear and speak to each other.
ARTICLE III -- COMMITTEES
1. Appointment. The Board of Directors may, by resolution passed by
a majority of the whole Board of Directors, designate one or more Committees,
each Committee to consist of two or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any Committee, who may replace any absent or disqualified member at any
meeting of the Committee. Any such Committee, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Such Committee or Committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors.
2. Procedures; Quorum and Manner of Acting. Each Committee shall fix
its own rules of procedure, and shall meet where and as provided by such rules
or by resolution of the Board of Directors. Except as otherwise provided by law,
the presence of a majority of the then appointed members of a Committee shall
constitute a quorum for the transaction of business by that Committee, and in
every case where a quorum is present the affirmative vote of a majority of the
members of the Committee present shall be the act of the Committee. Each
Committee shall keep minutes of its proceedings, and actions taken by a
Committee shall be reported to the Board of Directors.
3. Action by Written Consent. Any action required or permitted to be
taken at any meeting of any Committee of the Board of Directors may be taken
without a
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meeting if all the members of the Committee consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Committee.
4. Electronic Communication. Any member or members of a Committee of
the Board of Directors may participate in a meeting of a Committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear and speak to each other.
5. Termination. In the event any person shall cease to be a director
of the Corporation, such person shall simultaneously therewith cease to be a
member of any Committee appointed by the Board of Directors.
ARTICLE IV -- OFFICERS
1. Election and Qualifications. The Board of Directors at its first
meeting held after each annual meeting of Stockholders shall elect the officers
of the Corporation, which shall include a President and a Secretary, and may
include, by election or appointment, one or more Vice-Presidents (any one or
more of whom may be given an additional designation of rank or function), a
Treasurer and such Assistant Secretaries, such Assistant Treasurers and such
other officers as the Board of Directors may from time to time deem proper. Each
officer shall have such powers and duties as may be prescribed by these By-Laws
and as may be assigned by the Board of Directors or the President. Any two or
more offices may be held by the same person.
2. Term of Office and Remuneration. The term of office of all
officers shall be one year and until their respective successors have been
elected and qualified, but any officer may be removed from office, either with
or without cause, at any time by the Board of Directors. Any vacancy in any
office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. The remuneration of all officers of the
Corporation may be fixed by the Board of Directors or in such manner as the
Board of Directors shall provide.
3. Resignation; Removal. Any officer may resign at any time upon
written notice to the Corporation and such resignation shall take effect upon
receipt thereof by the President or Secretary, unless otherwise specified in the
resignation. Any officer shall be subject to removal, with or without cause, at
any time by the Board of Directors.
4. Powers and Duties of Officers.
(a) The Chairman of the Board of Directors, if there be one,
shall preside at all meetings of the Board of Directors and shall have such
other powers and duties as may from time to time be assigned by the Board of
Directors.
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(b) The President shall be the chief executive officer of the
Corporation and shall preside at all meetings of the Stockholders and, if there
is no Chairman, of the Board of Directors and shall have general management of
and supervisory authority over the property, business and affairs of the
Corporation and its other officers. The President may execute and deliver in the
name of the Corporation powers of attorney, contracts, bonds and other
obligations and instruments, and shall have such other authority and perform
such other duties as from time to time may be assigned by the Board of
Directors. The President shall see that all orders and resolutions of the Board
of Directors are carried into effect and shall perform such additional duties
that usually pertain to this office.
(c) A Vice President may execute and deliver in the name of
the Corporation powers of attorney, contracts, bonds and other obligations and
instruments pertaining to the regular course of such Vice President's duties,
and shall have such other authority and perform such other duties as from time
to time may be assigned by the Board of Directors or the President.
(d) The Treasurer shall in general have all duties and
authority incident to the position of Treasurer and such other duties and
authority as may be assigned by the Board of Directors or the President. 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
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by or at the direction of the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors or the President, and shall render, upon
request, an account of all such transactions.
(e) The Secretary shall in general have all the duties and
authority incident to the position of Secretary and such other duties and
authority as may be assigned by the Board of Directors or the President. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of Stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose. The Secretary shall give, or cause to be given, notice of
all meetings of the Stockholders and special meetings of the Board of Directors.
The Secretary shall have custody of the seal of the Corporation and any officer
of the Corporation shall have 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 any other officer.
(f) Any assistant officer shall have such duties and authority
as the officer such assistant officer assists and, in addition, such other
duties and authority as the Board of Directors or President shall from time to
time assign.
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ARTICLE V -- CONTRACTS, ETC.
1. Contracts. The Board of Directors may authorize any person or
persons, in the name and on behalf of the Corporation, to enter into or execute
and deliver any and all deeds, bonds, mortgages, contracts and other obligations
or instruments, and such authority may be general or confined to specific
instances.
2. Proxies; Powers of Attorney; Other Instruments.
(a) The Chairman, the President, any Vice President, the
Treasurer or any other person designated by any of them shall have the power and
authority to execute and deliver proxies, powers of attorney and other
instruments on behalf of the Corporation in connection with the execution of
contracts, the purchase of real or personal property, the rights and powers
incident to the ownership of stock by the Corporation and such other situations
as the Chairman, the President, such Vice President or the Treasurer shall
approve, such approval to be conclusively evidenced by the execution of such
proxy, power of attorney or other instrument on behalf of the Corporation.
(b) The Chairman, the President, any Vice President, the
Treasurer or any other person authorized by proxy or power of attorney executed
and delivered by any of them on behalf of the Corporation may attend and vote at
any meeting of stockholders of any company in which the Corporation may hold
stock, and may exercise on behalf of the Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, or
otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board of Directors, from time to time, may confer like powers upon
any other person.
ARTICLE VI -- BOOKS AND RECORDS
1. Location. The books and records of the Corporation may be kept at
such place or places within or outside the State of Delaware as the Board of
Directors or the respective officers in charge thereof may from time to time
determine. The record books containing the names and addresses of all
Stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary as prescribed in these By-Laws or by such officer or agent as shall be
designated by the Board of Directors.
2. Addresses of Stockholders. Notices of meetings and all other
corporate notices may be delivered personally or mailed to each Stockholder at
the Stockholder's address as it appears on the records of the Corporation.
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3. Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation may determine the
Stockholders entitled to notice of or to vote at any meeting of Stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and which record date shall not
be more than sixty days nor less than ten days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for
determining Stockholders entitled to notice of or to vote at a meeting of
Stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
Stockholders of record entitled to notice of or to vote at a meeting of
Stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
Stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of Directors,
the record date for determining Stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of Stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining Stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
(c) In order that the Corporation may determine the
Stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the Stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action not contemplated by paragraph (a) or (b) of this Section
3, the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted and
which record date shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining Stockholders for any such
purpose shall
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be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
ARTICLE VII CERTIFICATES REPRESENTING STOCK
1. Certificates, Signatures. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate, signed by or in the name of the Corporation by
the Chairman or Vice Chairman of the Board of Directors, or the President or
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, representing the number of shares
registered in certificate form. Any and all signatures on any such certificate
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, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
The name of the holder of record of the shares represented thereby, with the
number of such shares and the date of issue, shall be entered on the books of
the Corporation. The Board of Directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
Corporation.
2. Transfers of Stock. Upon compliance with provisions restricting
the transfer or registration of transfer of shares of stock, if any, shares of
capital stock shall be transferrable on the books of the Corporation only by the
holder of record thereof in person, or by duly authorized attorney, upon
surrender and cancellation of certificates for a like number of shares, properly
endorsed, and the payment of all taxes due thereon.
3. 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 Stockholder except as therein
provided.
4. Lost, Stolen or Destroyed Certificates. The Corporation may issue
a new certificate of stock in place of any certificate, theretofore issued by
it, alleged to have
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been lost, stolen or destroyed, and the Board of Directors may require the owner
of any lost, stolen or destroyed certificate, or his legal representative, to
give the Corporation a bond sufficient to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of any such new certificate.
ARTICLE VIII -- DIVIDENDS
Subject to the provisions of applicable law and the Certificate of
Incorporation, the Board of Directors shall have full power to determine whether
any, and, if any, what part of any, funds legally available for the payment of
dividends shall be declared as dividends and paid to Stockholders; the division
of the whole or any part of such funds of the Corporation shall rest wholly
within the lawful discretion of the Board of Directors, and it shall not be
required at any time, against such discretion, to divide or pay any part of such
funds among or to the Stockholders as dividends or otherwise; and 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 of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve. Stockholders shall receive
dividends pro rata in proportion to the number of shares of Common Stock
respectively held by them. A holder of Common Stock shall be deemed to share pro
rata in all dividends declared by the Board of Directors within the meaning of
the preceding sentence if such Stockholder receives assets (whether consisting
of cash, securities, real property, equipment, inventory or other assets) the
fair market value of which is in the same proportion to the fair market value of
the total assets of the Corporation available for distribution as a dividend as
the number of shares of Common Stock held by such holder of Common Stock is to
the total number of issued and outstanding shares of Common Stock of the
Corporation. A Stockholder shall not have the right to receive a pro rata share
of each or any such asset available for distribution as a dividend, however, the
Corporation shall not be prohibited hereby from making a pro rata distribution
of each or any such asset available for distribution as a dividend. The fair
market value of any and all assets of the Corporation distributed as a dividend
shall be determined in the sole discretion of the Corporation's Board of
Directors.
ARTICLE IX -- RATIFICATION
Any transaction, questioned in any lawsuit on the ground of lack of
authority, defective or irregular execution, adverse interest of any director,
officer or Stockholder, nondisclosure, miscomputation, or the application of
improper principles or practices of accounting, may be ratified before or after
judgment, by the Board of Directors or by the Stockholders, as appropriate, and
if so ratified shall have the same force and effect as if the
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questioned transaction had been originally duly authorized. Such ratification
shall be binding upon the Corporation and its Stockholders and shall constitute
a bar to any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE X -- CORPORATE SEAL
The corporate seal shall contain the words "Corporate Seal" and such
additional information as the officer inscribing such seal shall determine in
such officer's sole discretion. The corporate seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise
displayed or it may be manually inscribed.
ARTICLE XI -- FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Corporation shall end on September
30.
ARTICLE XII -- WAIVER OF NOTICE
Whenever notice is required to be given by these By-Laws or by the
Certificate of Incorporation or by law, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIII -- AMENDMENTS
The Board of Directors shall have power to adopt, amend or repeal
By-Laws. By-Laws adopted by the Board of Directors may be repealed or changed,
and new By-Laws made, by the Stockholders, and the Stockholders may prescribe
that any By-Law made by them shall not be altered, amended or repealed by the
Board of Directors.
ARTICLE XIV -- INDEMNIFICATION
1. Power to Indemnify in Action, Suits or Proceedings Other Than
Those By or In The Right of the Corporation. Subject to Section 3 of this
Article XIV, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
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 such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' and
other professionals' fees), judgments,
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fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner 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 the conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner 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 the conduct was unlawful.
2. Power to Indemnify in Actions, Suits or Proceedings By or In The
Right of the Corporation. Subject to Section 3 of this Article XIV, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' and
other professionals' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the extent
that the 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 person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
3. Authorization of Indemnification. Any indemnification under this
Article XIV (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 such
person has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article XIV, as the case may be. Such determination shall be
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) 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 (iii) if the Board of Directors so directs, by the Stockholders. To
the extent, however, 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 described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' and other
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professionals' fees) actually and reasonably incurred by such person in
connection therewith, without the necessity of authorization in the specific
case.
4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article XIV, a person shall be deemed to have acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe the conduct was unlawful,
if the action is based on (a) the records or books of account of the Corporation
or another enterprise (as defined below in this Section 4), or on information
supplied to such person by the officers of the Corporation or another enterprise
in the course of their duties, unless such person had reasonable cause to
believe that reliance thereon would not be justifiable, or on (b) the advice of
legal counsel for the Corporation or another enterprise, or on information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant, independent financial adviser,
appraiser or other expert, as to matters reasonably believed to be within such
other person's professional or expert competence. The term "another enterprise"
as used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article XIV,
as the case may be.
5. Indemnification By A Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article XIV, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article XIV. The basis of such indemnification by
a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article XIV, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application.
6. Expenses Payable In Advance. Expenses (including attorneys' and
other professionals' fees) incurred by an officer or director in defending any
threatened or pending civil, criminal, administrative or investigative action,
suit or proceeding may, but shall not be required to, be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer, to repay
such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article XIV.
Such expenses (including attorneys' and other professionals' fees) incurred by
other employees
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and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
7. Non-Exclusivity and Survival of Indemnification. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article XIV shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of Stockholders or of disinterested
directors, or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article XIV
(as distinguished from advancement of funds pursuant to Section 6 of this
Article XIV) shall be made to the fullest extent permitted by law. The
provisions of this Article XIV shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 and 2 of this
Article XIV but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or
otherwise. The indemnification provided by this Article XIV 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, administrators and other
comparable legal representatives of such person. The rights conferred in this
Article XIV shall be enforceable as contract rights, and shall continue to exist
after any rescission or restrictive modification hereof with respect to events
occurring prior thereto.
8. Meaning of "other enterprises" in connection with Employee
Benefit Plans, etc. For purposes of this Article XIV (including Sections 1, 2, 4
and 9 hereof), references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who has acted in good
faith and in a manner reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article XIV.
9. Insurance. The Corporation may, but shall not be required to,
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power or the obligation to indemnify such
person against such liability under the provisions of this Article XIV.
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