BYLAWS
OF
AMERICAN SKIING COMPANY
(f/k/a ASC DELAWARE, INC.)
Adopted: October 7, 1999
ARTICLE I
Name
Section 1. Name. The name of this corporation is stated in the
Certificate of Incorporation, as amended by the Certificate of Ownership and
Merger Merging American Skiing Company into ASC Delaware, Inc. filed with the
Secretary of State of Delaware on or about October 8, 1999.
ARTICLE II
References, Locations and Seal
Section 1. References. References in these Bylaws to the Certificate of
Incorporation shall mean this corporation's Certificate of Incorporation as
amended from time to time as on file with the Secretary of State of Delaware.
References in these Bylaws to the Delaware General Corporation Law and to
particular sections of said Law are to said Law and said sections as amended
from time to time. The headings of Articles and Sections in these Bylaws are for
convenience only, and shall not be taken into account in construing these
Bylaws.
Section 2. Office and Location. The registered office of this
corporation in Delaware and the municipality or other place in Delaware where it
is located are set forth in the Certificate of Incorporation. The principal
office and place of business of this corporation, within or without Delaware or
Maine, shall be at such place as the Board of Directors shall from time to time
fix.
Section 3. Seal. The seal of this corporation shall be circular in form
with the name of the corporation, the word "Delaware" and the year of its
incorporation so engraved on its face that it may be embossed on paper by
pressure, provided that the Board of Directors may adopt a wafer seal in any
form in respect of any particular document, in which case such wafer seal
affixed to such document shall be the corporate seal of this corporation thereon
for all purposes provided by law. The Secretary shall have custody of the
corporate seal and he or the Assistant Secretary may affix the same to documents
requiring it and attest the same. The Secretary may permit the President or
Assistant Secretary to keep a duplicate of the corporate seal.
ARTICLE III
Meetings of Shareholders
Section 1. Place. All meetings of shareholders shall be held at the
registered office of the corporation or at such other place within or without
Delaware as shall be fixed (i) by the Board of Directors, (ii) by the person or
persons calling the meeting, or (iii) in waivers of notice of the meeting signed
by all persons entitled to notice thereof.
Section 2. Date of Annual Meeting. The annual meeting of shareholders
shall be held on the third Monday of November in each year, if not a legal
holiday, and if a legal holiday, then on the next business day following, at
10:00 A.M., Local Time, or at such other hour as may be fixed by the President
or Board of Directors, for the election of a Board of Directors, and for the
transaction of such other business as may properly come before the meeting. The
annual meeting of shareholders may likewise be held at any date and time fixed
by the President or Board of Directors during a period of 30 days after the date
hereinabove specified. If there shall be a failure for whatever reason to hold
the annual meeting for a period of 30 days after the date hereinbefore
specified, a substitute annual meeting of shareholders may be called by any
person or persons entitled to call a special meeting of shareholders.
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Section 3. Call of Special Meetings. Special meetings of shareholders
for any purpose or purposes may be called to be held at the date and time fixed
in the call by the President, the Chairman of the Board of Directors (if any), a
majority of the Board of Directors, or the holders of not less than 50% of the
shares entitled to vote at the meeting.
Section 4. Notice. Unless waived in the manner prescribed by law,
written notice stating the place, day and time of the meeting and, in case of a
special meeting or when otherwise required by the Delaware General Corporation
Law, the purpose or purposes for which the meeting is called, shall be delivered
within the time period prescribed in ss. 222 of the Delaware General Corporation
Law, either personally or by mail, by or at the direction of the President,
Secretary, , or the officer or persons calling the meeting, to each shareholder
of record entitled to vote at such meeting, and to shareholders of record not
entitled to vote when required by the Delaware General Corporation Law.
ARTICLE IV
Quorum and Voting of Shares
Section 1. Quorum. The holders of a majority of the shares entitled to
vote thereat shall constitute a quorum at a meeting of shareholders.
Section 2. Votes. Except as otherwise provided by the Delaware General
Corporation Law, any corporate action shall be authorized by a majority of the
votes cast at the meeting by the holders of shares entitled to vote on the
subject matter. In elections of Directors, those candidates who receive the
greatest number of votes cast at the meeting by the holders of shares entitled
to vote to elect Directors, even though not receiving a majority of the votes
cast, shall be deemed elected.
ARTICLE V
Directors
Section 1. Number and Term. The number of Directors shall be fixed by
resolution of the shareholders or the Board of Directors within the limits
specified in the Certificate of Incorporation. The Directors shall be elected at
the annual meeting of the shareholders, and each Director so elected shall hold
office for one year and until the next succeeding annual meeting and until his
successor shall have been elected and qualified, or until his earlier
resignation, removal from office, death or incapacity.
Section 2. Vacancies, Resignation and Removal. Except as otherwise
provided in the Certificate of Incorporation, any vacancy in the Board of
Directors, including newly created directorships created by an increase in the
number of Directors, may be filled by a majority of the remaining Directors or
by the sole remaining Director. Any Director may resign his office by delivering
a written resignation to the President or Secretary.
Section 3. Powers. In the management and control of the business,
property and affairs of the corporation, the Board of Directors is hereby vested
with the power to authorize any and all corporate action, except when
shareholder action is specifically required by the Delaware General Corporation
Law, the Certificate of Incorporation or these Bylaws.
Section 4. Special Voting Requirements. For so long as the initial
purchasers of the corporation's 8.50% Series B Convertible Participating
Preferred Stock, par value $.01 per share (the "Series B Preferred")
beneficially own at least 20% of the aggregate outstanding shares of Class A
Common Stock and Common Stock of the corporation (on a Fully Diluted Basis) (as
defined in the Stockholders' Agreement, dated as of August 6, 1999 (the
"Stockholders' Agreement") by and among American Skiing Company, a Maine
corporation (to which this corporation is successor by merger), Leslie B. Otten
and the other parties named therein), the corporation shall not take the actions
listed in clauses (i) through (ix) below without the affirmative vote of at
least one Stockholder Director (as defined in the Stockholders' Agreement),
either as part of the vote of the full Board of Directors or of the Executive
Committee.
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(i) Approval of an annual operating and capital budget, which
shall include operating plans, detailed capital expenditure plans and a
business plan (the "Budget"), which Budget will include, without
limitation:
(A) detailed operating assumptions relating to,
without limitation, (1) pricing, (2) expected skier visits,
(3) an explanation of changes in operating cost from the prior
year, (4) head-count and expected seasonal head-count, (5)
departmental "sales, general and administrative" expenses,
including marketing plans and related budgets, and (6) a
detailed analysis of all required capital expenditures,
including return on investment analysis and a prioritization
of both growth and maintenance capital expenditures;
(B) planned material acquisitions, divestitures and
other development decisions (1) involving more than $2,000,000
in the aggregate or (2) reasonably expected to have an impact
of 5% or more on the corporation's consolidated revenues or
earnings;
(C) overall corporate strategy, including actions
that involve repositioning the corporation, commencing new
lines of business or significantly expanding lines of existing
business (other than the skiing business) or making material
investments in joint ventures or non-controlled operating
companies;
(D) requirements for capital in accordance with the
Budget, including, without limitation, planned material
financings (whether in the form of debt or equity), including
(1) issuance of debt or equity securities, (2) entering into
material new credit or financing agreements, (3) materially
increasing lines of credit or making material changes in
existing credit arrangements, (4) pledging material assets,
(5) the payment of dividends on outstanding capital stock of
the corporation and (6) any redemption or repurchase of
capital stock of the corporation, other than (x) the
redemption or repurchase of the Series B Preferred and (y)
redemptions in accordance with the terms of an Employee Plan
(as defined in the Stockholders' Agreement); and
(E) a "materiality" standard for variations in the
Budget requiring Board of Directors' approval.
(ii) Significant executive personnel decisions (other than
terminations), including, without limitation, hiring decisions or
decisions materially changing the compensation or responsibilities of
any Executive (as defined in the Stockholders' Agreement) and the chief
executive officer of the corporation.
(iii) Material actions that are likely to affect the
corporation's operating and strategic direction that are reasonably
expected or likely to have an impact of 5% or more on the corporation's
consolidated revenues or earnings.
(iv) Any amendment to the corporation's Certificate of
Incorporation or Bylaws.
(v) Any voluntary liquidation, dissolution, winding up,
recapitalization or reorganization of the corporation.
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(vi) Initiation of material litigation other than with respect
to any counterclaim made by the corporation in response to any claim
made by a third party.
(vii) Any merger, consolidation or other business combination
of the corporation with or into another person or entity or any sale of
all or substantially all the assets of the corporation or any of its
Material Subsidiaries (as defined in the Stockholders' Agreement).
(viii) Material changes to or reduction in insurance coverage.
(ix) Material financing or capital markets activity not
expressly provided in the Budget.
ARTICLE VI
Meetings of the Board of Directors
Section 1. Annual Meeting. The first meeting of each newly elected
Board of Directors, which shall be the Annual Meeting of the Board of Directors,
shall be held at such time and place as shall be fixed by the shareholders at
their meeting electing them, or if no such time and place are so fixed, said
first meeting shall be held at the place of and immediately following such
meeting of shareholders. In either event, no notice of such meeting shall be
necessary. Such meeting of the Board of Directors may also convene at such place
and time as shall be fixed by the consent in writing of all the Directors.
Section 2. Regular Meetings. Regular meetings of the Board of Directors
may be held at such time and place as shall from time to time be fixed by the
Board of Directors, and shall be held at least four (4) times in each fiscal
year commencing August, 2000 and at least six (6) times in the fiscal year
ending in July, 2000. Unless action is to be taken with respect to the
Certificate of Incorporation or Bylaws, no notice of such regular meetings shall
be necessary.
Section 3. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors (if any), President,
Secretary or any other person or persons authorized by the Delaware General
Corporation Law. The person or persons calling the special meeting shall fix the
time and place thereof.
Section 4. Notice; Generally. Notice of each special meeting of the
Board of Directors shall be given to each Director who has not signed a waiver
of notice before or after the meeting. Notices of meetings of the Board of
Directors shall be given by the Secretary or the person or persons calling the
meeting. Neither the business to be transacted at nor the purpose of the meeting
need be specified in the notice unless the Delaware General Corporation Law
shall otherwise require. The giving of notice of a special meeting of the Board
of Directors by or at the direction of the person or persons authorized to call
the same shall constitute the call thereof.
Section 5. Notice; When and How Given. Notice of meetings of the Board
of Directors may be given by any of the following methods within the time period
specified for that method:
(a) by depositing a copy of the notice in the United States mail, first
class postage prepaid, addressed to the Director at his usual or last
known business or residence address, at least 3 business days before
the meeting;
(b) by delivering a copy of the notice to a recognized overnight
delivery or express service addressed to the Director at his usual or
last known business or residence address, including street or the like
in the address, at least 2 business days before the meeting;
(c) by delivering a copy of the notice in hand to the Director at
least 24 hours before the meeting;
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(d) by reading or causing to be read the notice over the telephone to
the Director at least 24 hours before the meeting;
(e) by sending a telegram containing the contents of the notice
addressed to the Director at his usual or last known business or
residence address at least 2 business days before the meeting;
(f) by transmitting the contents of the notice by telecopy, fax or any
other electronic means for the simultaneous or substantially
simultaneous transmission of data to a telephone or other number held
out by the Director as a number maintained by him for the receipt of
the means of transmission selected at least 24 hours before the
meeting; or
(g) by sending a copy of the notice by any usual means of communication
addressed to the Director at his usual or last known business or
residence address, including street or the like in the address, at
least 3 business days before the meeting.
Notice to any Director actually received by him at least 24 hours before the
meeting shall be deemed sufficient, notwithstanding the method or means of
communication selected or the time when sent. For the purposes of this Section,
a "business day" is any day other than a Saturday, Sunday or legal holiday in
Maine.
ARTICLE VII
Executive and Other Committees
Section 1. Establishment; Authority. The Board of Directors, by a
resolution adopted by a majority of the Directors then in office, may designate
from among its members an executive committee and other committees, each
consisting of 2 or more Directors, and may delegate to such committee or
committees any part or all of the authority of the Board of Directors, except as
otherwise provided by ss. 141(c)(2) of the Delaware General Corporation Law.
Without limitation of the foregoing, no Employee Plan (as defined in the
Stockholders' Agreement) may be adopted or amended in any material respect
without the approval of the compensation and stock bonus (or equivalent)
committee, which approval must include the affirmative vote of at least one (1)
Stockholder Director (as defined in the Stockholders' Agreement).
Section 2. Procedures. Vacancies in the membership of a committee shall
be filled by resolution adopted by a majority of the Directors then in office.
Committees shall keep minutes of their proceedings and report the same to the
Board of Directors. Members of a committee may be removed from office, with or
without cause, by resolution adopted by a majority of the Directors then in
office. Any person or persons authorized to call a meeting of the Board of
Directors, as well as the chairman of a committee or the committee itself, may
call a meeting of a committee. Except as hereinbefore otherwise provided, so far
as applicable, the provisions of these Bylaws relating to the calling, noticing
and conduct of meetings of the Board of Directors shall govern the calling,
noticing and conduct of meetings of committees.
ARTICLE VIII
Officers
Section 1. Number. The officers of the corporation shall be elected by
the Board of Directors and shall be a President, a Chief Operating Officer and
President-Resort Operations, a Secretary and a Treasurer. The Board of Directors
may also elect one or more Vice Presidents (one of whom may be designated by the
Board of Directors as the Executive Vice President), and one or more Assistant
Secretaries and Assistant Treasurers.
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Section 2. When Chosen; Qualifications; Term; Removal. The Board of
Directors at its initial meeting after the incorporation of the corporation and
at each Annual Meeting thereafter shall elect said officers, who shall hold
office until the next Annual Meeting of the Board of Directors and thereafter
until their successors are chosen and have qualified, or until their earlier
death, resignation or removal from office.
The President (and any other officer which may at any time be deemed to
be the chief executive officer, if the President is not so identified) may be
removed only by the affirmative vote of at least (a) seven (7) directors, in the
event that there are eleven (11) directors, (b) six (6) directors (including at
least one Independent Director (as defined in the Stockholders' Agreement)) in
the event that there are ten (10) directors, (c) two-thirds of the directors
(including at least one Independent Director), in the event that there are fewer
than ten (10) directors, or (d) a majority of the directors (including at least
one Independent Director) in the event that there are more than eleven (11)
directors.
The President shall have sole authority to remove the chief operating
officer, the chief financial officer or the general counsel of the corporation,
or the chief operating officer (or equivalent position) of American Skiing
Company Resort Properties, Inc., but only after having sought (but not
necessarily obtained) the approval of the Executive Committee and the Board of
Directors at duly called meetings thereof.
Section 3. Authority and Duties. Each officer shall have such authority
and perform such duties as are set forth in the Delaware General Corporation Law
or in these Bylaws, and as shall be determined from time to time by the Board of
Directors. Each officer shall also have such authority and perform such duties
as are usually incumbent upon his office except as the same may be limited from
time to time by the Board of Directors.
Section 4. Compensation of Officers. The compensation of all officers
of the corporation shall be fixed by the Board of Directors.
Section 5. President. The President shall be the chief executive
officer of the corporation, shall preside at all meetings of the shareholders
and of the Board of Directors at which he is present, and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
Section 6. Vice President. The Vice President, if any, or if there
shall be more than one, the Vice Presidents in the order determined by the Board
of Directors, shall, in case of the absence or disability of the President, have
the authority and perform the duties of the President. If the Board of Directors
shall elect an Executive Vice President, it shall be presumed that he is the
Vice President determined by the Board of Directors first to act in case of the
absence or disability of the President.
Section 7. Secretary. The Secretary shall attend all meetings of the
Board of Directors and the shareholders and record all the proceedings of the
Board of Directors and the shareholders in a book or books kept for that
purpose. The Secretary shall perform like duties for the executive committee.
The Secretary or an Assistant Secretary may certify all votes, resolutions and
actions of the shareholders and the Board of Directors and its committees.
Section 8. Assistant Secretaries. The Assistant Secretary, or if there
be more than one, the Assistant Secretaries, in the order determined by the
Board of Directors, shall, in case of the absence or disability of the
Secretary, have the authority and perform the duties of the Secretary.
Section 9. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, and shall deposit all such funds in the name and
to the credit of the corporation in such depositories as may be designated by
the Board of Directors. The Treasurer shall keep or cause to be kept all books
and records of account and shall prepare or cause to be prepared all financial
statements required by the Delaware General Corporation Law, the Board of
Directors or good accounting practices. The Treasurer shall render to the Board
of Directors, whenever required, accounts of all corporate financial
transactions and of the financial condition of the corporation.
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Section 10. Assistant Treasurers. Except as hereinbefore provided, the
Assistant Treasurer, or, if there shall be more than one, the Assistant
Treasurers, in the order determined by the Board of Directors, shall, in case of
the absence or disability of the Treasurer, have the authority and perform the
duties of the Treasurer.
ARTICLE IX
Voting Shares of Other Corporations
Section 1. Voting Shares of Other Corporations. The Chairman of the
Board of Directors, if any, the President, any Vice President, the Secretary,
and the Treasurer of this corporation, in that order, shall have authority to
vote shares of other corporations standing in the name of this corporation, and
the President or the Secretary is authorized to execute and deliver in the name
and on behalf of this corporation proxies appointing any one or more of the
foregoing officers as the proxy agents of this corporation.
ARTICLE X
Lost Stock Certificates
Section 1. Lost Stock Certificates. The Board of Directors may
authorize, generally or in a specific case, the appropriate officers to execute
and deliver a replacement certificate for shares of this corporation in
substitution for any certificate for shares theretofore issued alleged to have
been lost, destroyed or stolen. Unless waived by the Board of Directors, the
officers executing the replacement certificate shall require the registered
holder thereof to sign and swear to an affidavit of loss and indemnity agreement
in such form as shall be prescribed by the Secretary. In addition, the Board of
Directors may prescribe such other terms and conditions precedent to the
issuance of replacement certificates, including without limitation the
requirement of further indemnities and surety bonds or insurance policies, as it
deems appropriate to protect the corporation and its officers and agents from
any claim that may be made against it or them with respect to any such
certificate alleged to have been lost, destroyed or stolen. The powers and
duties of the Board of Directors prescribed in this ARTICLE X may be delegated
in whole or in part to any registrar or transfer agent for this corporation.
ARTICLE XI
Transfers and Registration of Shares
Section 1. Stock Transfer Books. Upon surrender to the corporation or
the transfer agent of the corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, a new certificate shall be issued to the person entitled
thereto, and the old certificate cancelled and the transaction recorded in the
original stock transfer books of the corporation, provided that the provisions
of Article XV of these Bylaws respecting restrictions on transfers of shares
have been complied with. The original issue of shares of this corporation shall
likewise be recorded in the original stock transfer books of the corporation.
Section 2. Registered Shareholders. The corporation shall be entitled
to recognize the person or persons shown on its original stock transfer books as
the owner of shares as the exclusive and only owner thereof for all purposes,
including without limitation the right to (i) receive dividends and other
distributions; (ii) vote (except as otherwise provided in the Delaware General
Corporation Law); and (iii) examine lists, books, minutes or other materials
relating to the corporation. The corporation shall not be bound to recognize any
equitable or other claim to or interest in such shares on the part of any other
person not noted in its original stock transfer books, whether or not it shall
have express or other notice thereof.
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ARTICLE XII
Indemnification
Section 1. Definitions. For all purposes of this Article, (i) the term
"Officer" (when capitalized, but not otherwise) shall mean any person who is or
was a Director, the President, the Treasurer, or the Secretary of this
corporation; (ii) the term "Employee" (when capitalized, but not otherwise)
shall mean any other person (whether or not a common law employee) who is or was
an officer, employee or agent of this corporation, or is or was serving at the
request of this corporation as a director, officer, trustee, partner, fiduciary,
employee or agent of another corporation, partnership, joint venture, trust,
pension or other employee benefit plan, or other enterprise; and (iii) the term
"Claimant" (when capitalized, but not otherwise) shall mean any Officer or
Employee seeking indemnification under this Article.
Section 2. Indemnification. This corporation shall in all cases
indemnify any Officer, and shall have power exercisable by its Board of
Directors as provided in Section 5 hereof to indemnify any Employee, who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, (other than an action by or in the right of the corporation) by
reason of the fact that the Claimant is or was an Officer or Employee, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement to the extent actually and reasonably incurred by the Claimant in
connection with such action, suit or proceeding if the Claimant:
A. Acted in good faith and in a manner that, in the Claimant's
reasonable belief, was in or not opposed to the best interests of this
corporation; or
B. With respect to any criminal action or proceeding, had no
reasonable cause to believe that the Claimant's conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order or
conviction adverse to the Claimant, or by settlement or plea of nolo contendere
or its equivalent, shall not of itself create a presumption that the Claimant
did not act in good faith and in a manner that, in the Claimant's reasonable
belief ,was in or not opposed to the best interests of this corporation and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that the Claimant's conduct was unlawful.
Section 3. Derivative Actions. The corporation shall indemnify any
Officer, and shall have power exercisable by its Board of Directors as provided
in Section 5 hereto to indemnify any Employee, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of this corporation to procure a judgment in its favor
by reason of the fact that the person is or was an Officer or Employee against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the Claimant acted in good faith and in a manner the Claimant reasonably
believed to be in or not opposed to the best interests of this corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such Claimant shall have been adjudged to be liable to this
corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such Claimant is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 4. When Defense Successful. Any provisions of Sections 2, 3 or
5 hereof to the contrary notwithstanding, to the extent that a Claimant has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 2 or 3, or in defense of any claim, issue or
matter therein, the Claimant shall be indemnified against expenses, including
attorneys' fees, actually and reasonably incurred in connection therewith.
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Section 5. Determination in Specific Cases. Any indemnification under
Section 2 or 3 hereof, unless ordered by a court or required by Section 4
hereof, shall be made by this corporation only as authorized in the specific
case upon a determination that indemnification of the Claimant is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in Section 2 or 3 hereof, as applicable, and in the best interests of this
corporation. Where such a case specific determination is required, that
determination shall be made, with respect to a Claimant who is a director or
officer of this corporation at the time of such determination, by the Board of
Directors by a majority vote of the Directors who were not parties to the
action, suit or proceeding, even though less than a quorum, or by a committee of
such directors designated by a majority vote of such directors, even though less
than a quorum, or if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or by the
shareholders. Such a determination once made may not be revoked and, upon the
making of that determination, the Claimant may enforce the indemnification
against this corporation by a separate action notwithstanding any attempted or
actual subsequent action by the Board of Directors.
Section 6. Advances of Expenses. Expenses incurred by or in behalf of a
Claimant in defending a civil, criminal, administrative or investigative action,
suit or proceeding (i) in the case of a Claimant who is an Employee may be
authorized and paid by this corporation in advance of the final disposition of
that action, suit or proceeding upon a determination made in accordance with the
procedure established in Section 5 hereof that, based solely on the facts then
known to those making the determination and without further investigation, such
Claimant satisfies the standard of conduct prescribed by Section 2 or Section 3
hereof, as applicable, and (ii) in the case of a Claimant who is an Officer
shall in all cases be paid, as reasonably requested from time to time by the
Officer, and in the case of an Employee, may (subject to clause (i) of this
Section 6) be paid, by this corporation in advance of the final disposition of
the action, suit or proceeding upon receipt by this corporation, at the time of
the initial advance, of a written undertaking by or on behalf of it to repay all
amounts advanced if it is ultimately determined that the Claimant is not
entitled to be indemnified by this corporation as authorized in this Article
XII.
The undertaking described in clause (ii) shall be an unlimited general
obligation of the Claimant seeking the advance, but need not be secured and may
be accepted without reference to financial ability to make the repayment.
Section 7. Indemnification Not Exclusive. The indemnification and
entitlement to advances of expenses provided by this Article shall not be deemed
exclusive of any other rights to which a Claimant may be entitled under any
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in the Claimant's official capacity and as to action in another
capacity while holding an office with this corporation, and shall continue as to
a person who has ceased to be a director, officer, employee, agent, trustee,
partner or fiduciary and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of such a person.
Section 8. Enforceable By Separate Action. A right to indemnification
required by this Article or established pursuant to the provisions of this
Article may be enforced by a separate action against this corporation, if an
order for indemnification has not been entered by a court in any action, suit or
proceeding in respect to which indemnification is sought.
Section 9. Miscellaneous. For purposes of this Article, (i) references
to this "corporation" shall include, in addition to the surviving corporation or
new corporation, any participating corporation in a consolidation or merger;
(ii) this corporation shall be deemed to have requested a person to serve an
employee benefit plan whenever the performance by him of his duties to this
corporation also imposes duties on, or otherwise involves services by, him to
the plan or participants or beneficiaries of the plan; and (iii) excise taxes
assessed on a person seeking indemnification with respect to an employee benefit
plan pursuant to applicable law shall be deemed "fines".
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Section 10. Amendment. Any amendment, modification or repeal of this
Article shall not deny, diminish or otherwise limit the rights of any Claimant
to indemnification or advances hereunder with respect to any action, suit or
proceeding arising out of any conduct, act or omission occurring or allegedly
occurring at any time prior to the date of such amendment, modification or
repeal.
ARTICLE XIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XIV
Execution of Documents
Section 1. Execution of Documents. Unless the Board of Directors,
Executive Committee or shareholders shall otherwise generally or in any specific
instance provide:
A. Any bill, note or negotiable instrument may be signed or endorsed in
the name and on behalf of this corporation in the ordinary course of
business by the President or Treasurer, acting singly;
B. The President or Treasurer, acting singly, shall in the ordinary
course of business have authority to sign or endorse in the name and on
behalf of this corporation all checks and other orders for the payment
of money drawn on any bank or trust company;
C. The President or Treasurer, acting singly, shall have authority to
make, in the name and on behalf of this corporation, all contracts in
the ordinary course of business; and
D. Any other instrument, document, deed, bill of sale or other writing
of whatever nature to be executed in the ordinary course of business
may be executed in the name and on behalf of this corporation by the
President or Treasurer, acting singly, and either officer may seal,
acknowledge and deliver the same.
Section 2. Assistants. Vice Presidents and Assistant Treasurers shall
not have the authority provided in Section 1 unless granted by the Board of
Directors generally or in any specific instance.
ARTICLE XV
Amendments to Bylaws
Section 1. Amendments. Subject to the provisions of Article V, Section
4, the Board of Directors shall have the power to alter, amend or repeal these
Bylaws, and to adopt new Bylaws, provided that the notice, unless notice shall
be duly waived, of any regular or special meeting at which such action is to be
taken shall either set out the text of the proposed new Bylaw or amendment or
Bylaw to be repealed, or shall summarize the changes to be effected by such
adoption, amendment or repeal, and provided further that the shareholders may
amend or repeal a Bylaw provision adopted by the Board of Directors and in such
case the Board of Directors may not, for two years thereafter, amend or readopt
the Bylaw provision thus amended or repealed by the shareholders.
