State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "FOOD AND BEVERAGE MASTERS (KAZAKSTAN) INC.", FILED IN THIS
OFFICE ON THE EIGHTEENTH DAY OF JULY, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL]
Edward J. Freel
[SEAL]-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8573406
DATE: 07-24-97
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CERTIFICATE OF INCORPORATION
OF
FOOD AND BEVERAGE MASTERS (KAZAKSTAN) INC.
----------
FIRST. The name of this corporation shall be:
FOOD AND BEVERAGE MASTERS (KAZAKSTAN) INC.
SECOND. Its registered office in the State of Delaware is to be located at
1013 Centre Road, in the City of Wilmington, County of New Castle, 19805, and
its registered agent at such address is CORPORATION SERVICE COMPANY.
THIRD. The purpose or purposes of the corporation shall be:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which this corporation is
authorized to issue is:
Fifty-five million (55,000,000) shares of which fifty million (50,000,000)
shares with a par value of one-tenth cent (0.001), amounting to five hundred
thousand dollars ($500,000) are common stock and five million (5,000,000) shares
with a par value of one-tenth of one cent (0.001) each, amounting to fifty
thousand dollars ($50,000) are preferred stock.
FIFTH. The name and mailing address of the incorporator is as follows:
Christine J. Gates
Corporation Service Copany
1013 Centre Road
Wilmington, DE 19805
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SIXTH. The Board of Directors shall have the power to adopt, amend or
repeal the by-laws.
IN WTTNESS WHEREOF, The undersigned, being the incorporator hereinbefore
named, has executed, signed and acknowledged this certificate of incorporation
this eighteenth day of July, AD. 1997.
/s/ Christine J. Gates
-----------------------------------
Christine J. Gates
Incorporator
<PAGE>
BYLAWS
OF FOOD AND BEVERAGE MASTERS (KAZAKSTAN) INC.
ARTICLE I
Offices
Section 1. Registered Office. The registered office of FOOD AND BEVERAGE
MASTERS (KAZAKSTAN) INC. (hereinafter referred to as the "Corporation") shall be
maintained at such locations within the State of as the Board of Directors from
time to time shall designate. The Corporation shall maintain in and in charge of
such registered office an agent upon whom process against the Corporation may be
served.
Section 2. Other Offices. The Corporation may also have an office or
offices at such other place or places, either within or without the State of, as
the Board of Directors from time to time may determine or the business of the
Corporation may require.
ARTICLE II
Meetings of Shareholders
Section I. Annual Meetings. The annual meeting of the shareholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on such date and
at such time as shall be designated by the Board of Directors and stated in the
notice of such meeting. If the election for directors shall not be held on the
day designated therefor or at any adjournment thereof, the directors shall cause
such election to be held at a special meeting of the shareholders as soon
thereafter as may be convenient. At such special meeting, the shareholders may
elect the directors and transact any other business with the same force and
effect as at an annual meeting duly called and held.
Section 2. Special Meetings. A special meeting of the shareholders for any
purpose or purposes, unless otherwise prescribed by stature, may be called at
any time and shall be called by the President or Secretary upon the direction of
the Board of Directors or upon the written request of a shareholder or
shareholders holding of record at least ten percent (10%) of the outstanding
shares of the Corporation entitled to vote at such a meeting.
Section 3. Place of Meetings. All meetings of the shareholders of the
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Corporation shall be held at the principal place of business of the Corporation
or at such other place, within or without the State of, as shall, be designated
by the Board of Directors and stated in the notice of the meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law, notice
of each meeting of the shareholders, whether annual, special, or adjourned,
shall be given, not less tan ten (10) days nor more than sixty (60) days before
the day on which the meeting is to be held, to each shareholder of record
entitled to vote at such meeting by delivering a written or printed notice
thereof of him personally, by facsimile, or by mailing such notice in a postage
prepaid envelope addressed to him at the post office address furnished by him to
the Secretary of the Corporation for such purpose, or, if he shall not have
furnished to the Secretary of the Corporation an address for such purpose, then
at the post office address last known to the Secretary of the Corporation.
Except where expressly required by law, no publication of any notice of a
meeting of shareholders shall be required. Notice of any meeting of shareholders
shall not be required to be given to any shareholder who shall attend such
meeting in person or by proxy and, if any shareholder shall in person or by
proxy waive notice, in writing, of any meeting, whether before or after such
meeting, notice thereof need not be given to him. Notice of any adjourned
meeting of the shareholders shall not be required to be given, except where
expressly required by law.
Section 5. Quorum. At each meeting of the shareholders, the presence in
person or by proxy of shareholders holding of record a majority of the
outstanding shares enticed to vote at such meeting shall be necessary and
sufficient to constitute a quorum for the transaction of business. In the
absence of a quorum, the shareholders entitled to vote who are present in person
or by proxy at the time and place of any meeting, or, if no shareholder enticed
to vote is so present in person or by proxy, any officer entitled to preside at
or act as secretary of such meeting, may adjourn the meeting from time to time,
without notice other than an announcement at the meeting, until a quorum shall
be present. At any such adjourned meeting at which a quorum may be present, any
business may be transacted which might have been transacted at the meeting as
originally called Section 6. Organization. At every meeting of the shareholders,
the President, or, in his absence, a Vice President, or, in the absence of the
President and all of the Vice Presidents, a chairman chosen by a majority in
interest of the shareholders present in person or by proxy and entitled to vote
thereat, shall act as chairman. The Secretary, or, in his absence, an Assistant
Secretary, sha]1 act as secretary at all meetings of the shareholders. In the
absence from any such meeting of the Secretary or an Assistant Secretary, the
chairman may appoint any person to act as secretary of the meeting.
Section 7. Business and Order of Business. At each meeting of the
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shareholders, such business may be transacted as may properly be brought before
such meeting, whether or not such business is stated in the notice of such
meeting or in a waiver of notice thereof, except as otherwise required by law or
expressly provided herein. The order of business at all meetings of the
shareholders shall be as determined by the chairman, subject to the approval of
a majority in interest of the shareholders present in person or by proxy at such
meeting and entitled to vote thereat.
Section 8. Voting. At each meeting of the shareholders, each shareholder
shall be entitled to one vote in person or by proxy for each share of the
Corporation having voting rights registered in his name on the books of the
Corporation at the close of business on the day next preceding the day on which
notice of the meeting was given, or, if no notice was given, on the day next
preceding the day on which the meeting is held, except where, pursuant to the
provisions of Section 7 of Article VII of these bylaws, a date shall have been
fixed as a record date for the determination of the shareholders entitled to
vote. Any shareholder entitled to vote may vote in person or by proxy in
writing; provided, however, that no proxy shall be valid after eleven (11)
months after the date of its execution, unless otherwise provided therein. The
presence at any meeting of any shareholder who has given a proxy shall not
revoke such proxy unless the shareholder shall file written notice of such
revocation with the secretary of the meeting prior to the voting of such proxy.
At each meeting of the shareholders, all matters other than those the
manner of deciding of which is expressly regulated by statute, the Certificate
of Incorporation, or these Bylaws, shall be decided by a majority of the votes
cast by the holders of shares entitled to vote thereon.
The Board of Directors, in advance of any meeting of the shareholders, or
the chairman of the meeting, at such meeting, may appoint one or more inspectors
of election to act at the meeting or any adjournment thereof, but no inspectors
need be appointed unless expressly requested at the meeting by a shareholder
entitled to vote thereat.
Section 9. Action by Shareholders Without a Meeting. Any action required or
permitted to be taken at a meeting of the shareholders under any provisions of
the Business Corporation Act, the Certificate of Incorporation, or these Bylaws
may be taken without a meeting if all of the shareholders entitled to vote
thereon consent in writing to such action being taken, or, subject to the
provisions of Section _ of the Business Corporation Act, if the shareholders who
would have been entitled to cast the minimum number of votes which would be
necessary to authorize such action at a meeting at which all of the shareholders
entitled to vote thereon were present and voting shall consent in writing to
such action being taken. Whenever corporate action is so
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taken, the consents of the shareholders consenting thereto shall be filed with
the minutes of proceedings of the shareholders of the Corporation.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, affairs, and business of the
Corporation shall be managed by the Board of Directors.
Section 2. Number, Qualifications, and Term of Office. There shall be three
(3) directors constituting the Board of Directors. The directors shall be
elected annually at the annual meeting of the shareholders. Each director shall
hold office until his successor shall have been elected and qualified, until his
death, until he shall have resigned in the manner set forth in Section 12 of
this Article m, or until he shall have been removed in the manner set forth in
Section 13 of this Article III, whichever shall first occur. Any director
elected to fill a vacancy in the Board of Directors shall be deemed elected for
the unexpired portion of the term of his predecessor on the Board of Directors.
Each director, at the time of his election, shall be at least eighteen (18)
years of age, and shall be a shareholder of the Corporation.
Section 3. Election of Directors. At each meeting of the shareholders for
the election of directors, the directors shall be chosen by a plurality of the
votes cast at such election by the holders of shares entitled to vote thereon.
The vote for directors need not be by ballot unless demanded by a shareholder
entitled to vote thereon at the election and before the voting begins.
Section 4. Annual Meetings. The annual meeting of the Board of Directors
shall be held in each year immediately after the annual meeting of shareholders,
at such place as the Board of Directors from time to time may fix and, if so
held, no notice of such meeting need be given.
Section 5. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times as the Board of Directors shall determine. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at said place at the same hour on the next succeeding business
day that is not a legal holiday. Notice of regular meetings need not be given.
Section 6. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the President or any one (1) director. Notice
of each such meeting shall be mailed to each director, addressed to him at his
residence or usual
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place of business, a least five (5) days before the day on which the meeting is
to be held, or shall be sent to him at such place by facsimile, telegraph,
cable, telex, or the equivalent, or be delivered personally or by telephone, not
later than the day preceding the day on which the meeting is to be held, except
that in the event of an emergency, the President may direct that shorter notice
of a special meeting be given personally or by facsimile, telephone, telegraph,
cable, telex, or the equivalent. Neither the business to be transacted nor the
purpose of the meeting need be specified in the notice. Notice of any meeting of
the Board of Directors need not be given, however, if waived in writing or by
facsimile, telegraph, telex, cable, or the equivalent, either before or after
such meeting, or, if present, at the meeting. Any meeting of the Board of
Directors shall be a legal meeting without any notice having been given, if all
the directors shall be present thereat.
Section 7. Place of Meeting. Meetings of the Board of Directors may be held
at such place or places within or without the State of as the Board of Directors
from time to time may designate.
Section 8. Quorum and Manner of Acting. A majority of the directors shall
be required to constitute a quorum for the transaction of business at any
meeting. The act of a majority of the directors present at any meeting while a
quorum is present shall be an act of the Board of Directors. In the absence of a
quorum, a majority of the directors present may adjourn any meeting from time to
time until a quorum be had. Notice of any adjourned meeting shall be given in
the same manner as notice of special meetings is required to be given as set
forth in these Bylaws. The directors shall act only as a board and the
individual directors shall have no power as such.
Section 9. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the Board of Directors or any committee thereof may
be taken without a meeting if, prior or subsequent to such action, all members
of the Board of Directors or of such committee, as the case may be, consent
thereto in writing and such written consents are filed with the minutes of the
proceedings of the Board of Directors or committee. Such consent shall have the
same effect as a unanimous vote of the Board of Directors or committee for all
purposes and may be stated as such in any certificate or other document filed
with the Secretary of State.
Section 10. Organization. At each meeting of the Board of Directors, the
President or, in his absence, a chairman chosen by a majority of the directors
present, shall act as chairman. The Secretary, or, in his absence, an Assistant
Secretary, or, in the absence of the Secretary and the Assistant Secretaries,
any person appointed by the chairman, shall act as secretary of the meeting.
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Section 11. Order of Business. At all meetings of the Board of Directors,
business may be transacted in such order as the Board of Directors may
determine.
Section 12. Resignations. Any director of the Corporation may resign at any
time by giving written notice to the President or to the Secretary of the
Corporation. The resignation of any director shall take effect at the time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 13. Removal of Directors. Any directors may be removed at any time,
either with or without cause, by the shareholders at any regular or special
meeting of the shareholders and the vacancy in the Board of Directors caused
thereby may be filled by the shareholders at the same meeting.
Section 14. Vacancies. Any vacancy in the Board of Directors, whether
caused by death, resignation, removal, disqualification, an increase in the
number of directors, or any other cause, may be filled by the shareholders.
Section 15. Compensation. The directors shall receive no compensation for
their services as directors.
Section 16. Indemnification of Directors and Officers. The Corporation
shall indemnify each corporate agent, as such term is defined in Section 14A:3-5
of the Business Corporation Act, as set forth in Article VI of these Bylaws.
Section 17. Loans to Officers or Employees. The Board of Directors may lend
money to, guarantee any obligation of, or otherwise assist, any officer or other
employee of the Corporation or of any subsidiary, whether or not such officer or
employee is also a director of the Corporation, whenever, in the judgment of the
directors, such loan, guarantee, or assistance may reasonably be expected to
benefit the Corporation; provided, however, that any such loan, guarantee, or
other assistance given to an officer or employee who is also a director of the
Corporation must be authorized by a majority of the entire Board of Directors.
Any such loan, guarantee, or other assistance may be made with or without
interest and may be unsecured or secured in such manner as the Board of
Directors shall approve, including, but not limited to, a pledge of shares of
the Corporation, and may be made upon such other terms and conditions as the
Board of Directors may determine.
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ARTICLE IV
Officers
Section 1. Number. The officers of the Corporation shall be a President, a
Treasurer, and a Secretary, and, in the discretion of the Board of Directors,
one or more Vice Presidents, all of which shall be shareholders of the
Corporation.
Section 2. Election, Qualifications, and Terms of Office. The officers
shall be elected annually by the Board of Directors. Each officer shall hold
office until his successor shall have been elected and qualified, or until his
earlier death, resignation, or removal in the manner provided in these Bylaws.
Any person may hold more than one office.
Section 3. Resignations. Any officer may resign at any time by giving
written notice of such resignation to the Board of Directors, the President, or
the Secretary of the Corporation. Unless otherwise specified in such written
notice, such resignation shall take effect upon receipt of the notice thereof by
the Board of Directors or any such officer.
Sectiou 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled for
the unexpired portion of the term by the Board of Directors.
Section 5. The President. The President shall be the chief executive
officer of the Corporation. Subject to the direction of the Board of Directors,
he shall have general charge of the business affairs and property of the
Corporation and general supervision over its officers and agents. If present, he
shall preside at all meetings of shareholders and at all meetings of the Board
of Directors. He shall see that all orders and resolutions of the Board of
Directors are carried into effect. He may sign, with any other officer thereunto
authorized, share certificates of the Corporation, the issuance of which shall
have been duly authorized, and may sign and execute, in the name of the
Corporation, deeds, mortgages, bonds, contracts, agreements, and other
instruments duly authorized by the Board of Directors, except in these instances
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent. From time to time, he shall
report to the Board of Directors all matters within his knowledge which the
interests of the Corporation may require to be brought to their attention. He
shall also perform such other duties as are given to him by these Bylaws or as
from time to time may be assigned to him by the Board of Directors.
Section 6. The Secretary. The Secretary shall (a) record all the
proceedings of
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the meetings of the shareholders and Board of Directors in a book or books to be
kept for that purpose; (b) cause all notices to be duly given in accordance with
the provisions of these Bylaws and as required by statute; (c) be custodian of
the records and of the seal of the Corporation and cause such seal to be affixed
to all certificates representing shares of the Corporation prior to the issuance
thereof and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized; (d) see that the
lists, books, reports, statements, certificates, and other documents and records
required by statute are properly kept and fi- led; (e) have charge of the share
record books of the Corporation and cause the same to be kept in such manner as
to show at any time the amount of shares of the Corporation issued and
outstanding, the names and addresses of the holders of record thereof, the
number of shares held by each, and the date when each became such holder of
record; (f) perform the duties required of him under Section 9 of Article II of
these Bylaws; (g) sign (unless the Treasurer shall sign) certificates
representing shares of the Corporation, the issuance of which shall have been
duly authorized; and (h) in general, perform all duties incident to the office
of Secretary and such other duties as are given to him by these Bylaws or as
from time to time may be assigned to him by the Board of Directors or the
President.
Section 7. The Treasurer. The Treasurer shall (a) have charge of and
supervision over and by responsible for the funds, securities, receipts, and
disbursements of the Corporation; (b) cause the moneys and other valuable
effects of the Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies, or with such bankers or other
depositories, as shall be selected in accordance with Section 3 of Article V of
these Bylaws or to be otherwise dealt with in such manner as the Board of
Directors may direct; (c) cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositories of the Corporation and cause
to be taken and preserved proper vouchers for all moneys disbursed; (d) render
to the Board of Directors or the President, whenever requested, a statement of
the financial condition of the Corporation and of all his transactions as
Treasurer; (e) cause to be kept, at the principal office of the Corporation or
at such other office (within or without the State of) as shall be designated by
the Board of Directors, correct books of account of all its business and
transactions; (f) sign (unless the Secretary shall sign) certificates
representing shares of the Corporation, the issuance of which shall have been
duly authorized; and (g) in general, perform all duties incident to the office
of Treasurer and such other duties as are given to him by these Bylaws or as
from time to time may be assigned to him by the Board of Directors or the
President.
Section 8. The Vice Presidents. At the request of the President, any Vice
President shall perform all the duties of the President and, when so acting,
shall have
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all the powers of and be subject to all restrictions upon the President. Any
Vice President may also sign, with any other officer "hereunto duly authorized,
share certificates of the Corporation, the issuance of which shall have been
duly authorized, and may sign and execute in the name of the Corporation, deeds,
mortgages, bonds, contracts, agreements, and other instruments duly authorized
by the Board of Directors, except in those instances where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent. Each Vice President shall perform such other duties as
are given to him by these Bylaws or as from time to time may be assigned to him
by the Board of Directors or the President.
Section 9. Salaries. The salaries of the officers of the Corporation shall
be fixed from time to time by the Board of Directors. No officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
Section 10. Surety Bonds. In the event the Board of Directors shall so --
quire, any officer or agent of the Corporation shall execute a bond to the
Corporation, in such sum and with such surety or sureties as the Board of
Directors may direct, conditioned upon the faithful discharge of his duties.
ARTICLE V
Contracts and Financial Matters
Section 1. Execution of Contracts. The President or any Vice President,
subject to the approval of the Board of Directors, may enter into any contract
or execute and deliver any instrument in the name and on behalf of the
Corporation. Such authorization may be general or confined to specific
instances.
Section 2. Checks and Drafts. All checks, drafts, or other orders for the
payment of money and all notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers or agent or
agents of the Corporation as shall be "hereunto so authorized from time to time
by resolution of the Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to its credit in such banks or trust
companies or with such bankers or other depositaries as the Board of Directors
may select or as may be selected by any officer or officers or agent or agents
authorized so to do by the Board of Directors. Endorsements for deposit to the
credit of the Corporation in any of its duly authorized depositaries shall be
made in such manner as the Board of Directors from time to time may determine.
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Section 4. General and Special Bank Accounts. The Board of Directors may
authorize from time to time the opening and keeping of general and special bank
accounts with such banks, trust companies, or other depositaries as it may
designate and may make such special rules and regulations with respect thereto,
not inconsistent with the provisions of these Bylaws, as it may deem expedient.
Section 5. Loans. No loans or advances shall be contracted on behalf of the
Corporation and no negotiable paper shall be issued in its name, unless and
except as authorized by the Board of Directors. Such authorization may be
general or confined to specific instances. Any officer or agent of the
Corporation "hereunto so authorized may effect loans and advances for the
Corporation and for such loans and advances may make, execute, and deliver
promissory notes, bonds, or other evidences of indebtedness of the Corporation.
Any officer or agent of the Corporation "hereunto so authorized may pledge,
hypothecate, or transfer, as security for the payment of any and all loans,
advances, indebtedness, and liabilities of the Corporation, any and all stocks,
bonds, other securities, and other personal property at any time held by the
Corporation and, to that end, may endorse, assign, and deliver the same and do
every act and thing necessary or proper in connection therewith.
Section 6. Proxies. Proxies to vote wilt respect to shares of stock of
other corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by such
person or persons as shall be "hereunto authorized from time to time by the
Board of Directors.
ARTICLE VI
Indemnification and Insurance
Section 1. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any pending,
threatened, or completed civil, criminal, administrative, or arbitration action,
suit, or proceeding, or any appeal therein or any inquiry or investigation which
could lead to such action, suit, or proceeding (a "proceeding"), by reason of
his being or having been a director, officer, employee, or agent of the
Corporation or of any constituent corporation absorbed by the Corporation in a
consolidation or merger or by reason of his being or having been a director,
officer, trustee, employee, or agent of any other corporation (domestic or
foreign) or of any partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or such enterprise (whether or not for profit), serving
as such at the request of the Corporation or of any such constituent
corporation, or the legal representative of any such director, officer, trustee,
employee, or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent permitted by the Business Corporation Act, as the same exists
or may hereafter be amended (but, in the
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case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said Act permitted
prior to such amendment), from and against any and all reasonable costs,
disbursements, and attorney's fees, and any and all amounts paid or incurred in
satisfaction of settlements, judgments, fines, and penalties, incurred or
suffered in connection with any such proceeding, and such indemnification shall
continue as to a person who has ceased to be a director, officer, trustee,
employee, or agent and shall inure to the benefit of" his hefts, executors,
administrators, and assigns; provided, however, that, except as provided in
Section 2 of this Article VI, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
specifically authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Article VI shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
connection with any proceeding in advance of the final disposition of such
proceeding as authorized by the Board of Directors; provided, however; that, if
the Business Corporation Act so requires, the payment of such expenses in
advance of the final disposition of a proceeding shall be made only upon receipt
by the Corporation of an undertaking, by or on behalf of such director, officer,
employee, or agent, to repay all amounts so advanced unless it shall ultimately
be determined that such person is entitled to be indemnified under this Article
or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim made under Section 1
of this Article VI is not paid in full by the Corporation within thirty (30)
days after a written request has been received by the Corporation, the claimant
may, at any time thereafter, apply to a court for an award of indemnification by
the Corporation for the unpaid amount of the claim and, if successful on the
merits or otherwise in connection with any proceeding or in the defense of any
claim, issue, or matter therein, the claimant shall also be entitled to be paid
by the Corporation for any and all expenses incurred or suffered in connection
with such proceeding. It shall be a defense to any such action (other than an
action brought to enforce a claim for the advancement of expenses incurred in
connection with any proceeding where the required undertaking, if any, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the Business Corporation Act for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel, or
its shareholders) to have made a determination prior to the commencement of such
proceeding that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Business
Corporation Act, nor an actual determination by the Corporation (including its
Board of Directors, its independent legal
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counsel, or its shareholders) that the claimant has not met such applicable
standard of conduct, nor the termination of any proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 3. Nonexclusivity of Rights. The right to indemnification and
advance of expenses provided by or granted pursuant to this Article VI shall not
exclude or be exclusive of any other rights to which any person may be entitled
under the Certificate of Incorporation of the Corporation, these Bylaws, any
agreement, vote of shareholders, or otherwise; provided, however, that no
indemnification shall be made to or on behalf of such person if a judgment or
other final adjudication adverse to such person establishes that such person has
not met the applicable standard of conduct required to be met under the Business
Corporation Act.
Section 4. Insurance. The Corporation may purchase and maintain insurance
on behalf of any director, officer, employee, or agent of the Corporation, or of
another corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise, against any expenses incurred in any proceeding and against
any liabilities asserted against him by reason of such person's being or having
been such a director, officer, employee, or agent, whether or not the
Corporation would have the power to indemnify such person against such expenses
and liabilities under the provisions of this Article VI or otherwise
ARTICLE VII
Shares and Their Transfer
Section 1. Share Certificates. Every holder of shares of the Corporation
shall be entitled to have a certificate, signed by the President or a Vice
president and either the Treasurer or the Secretary, certifying the number of
shares owned by him in the Corporation. In case any officer of the Corporation
who has signed any such certificate shall cease to be such officer, for whatever
cause, before the certificate shall have been delivered by the Corporation, the
certificate shall be deemed to have been adopted by the Corporation unless the
Board of Directors shall otherwise determine prior to the issuance and delivery
thereof and may be issued and delivered as though the person who signed it had
not ceased to be such officer of the Corporation. Certificates representing
shares of the Corporation shall be in such form as shall be approved by the
Board of Directors. There shall be entered upon the share record books of the
Corporation, at the time of issuance of each share, the number of the
certificate issued, the name and address of the person owning the shares
represented thereby, the number of shares, and the date of issuance thereof.
Every certificate exchanged or returned to
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the Corporation shall be marked "cancelled" with the date of cancellation.
Section 2. Share Record Books. The share record books and the blank share
certificate books shall be kept by the Secretary, of the Corporation or by any
officer or agent designated by the Board of Directors.
Section 3. Addresses of Shareholders. Each shareholder shall designate to
the Secretary of the Corporation an address at which notices of meetings and all
other corporate notices may be served, delivered, or mailed to him and, if any
shareholder shall fail to designate such address, all corporate notices (whether
served or delivered by the Secretary, another shareholder, or any other person)
may be served upon him by mail directed to him at his last known post office
address.
Section 4. Transfers of Shares. Transfers of shares of the Corporation
shall be made on the books of the Corporation by the holder or record thereof or
by his attorney "hereunto duly authorized by a power of attorney duly executed
in writing and filed with the Secretary of the Corporation and on surrender of
the certificate or certificates representing such shares. The Corporation shall
be entitled to treat the holder of record of any shares as the absolute owner
thereof for all purposes and, accordingly, shall not be bound to recognize any
legal, equitable, or other claim to or interest in such shares on the part of
any other person, whether or not it or they shall have express of other notice
thereof, except as otherwise expressly provided by statute; provided, however,
that whenever any transfer of shares shall be made for collateral security and
not absolutely and written notice thereof shall be given to the Secretary of the
Corporation, such fact shall be expressed in the entry of the transfer.
Notwithstanding anything to the contrary contained in these Bylaws, the
Corporation shall not be required or permitted to make any transfer of shares of
the Corporation which, if made, would violate the provisions of the Professional
Service Corporation Act or the terms and provisions of any agreement restricting
the transfer of shares of the Corporation to which the Corporation shall be a
party; provided, however, that the restriction upon the transfer of the shares
represented by any share certificate shall be set forth or referred to upon the
certificate.
Section 5. Regulations. Subject to the provisions of this Article VII, the
Board of Directors may make such rules and regulations as it may deem expedient
concerning the issuance, transfer, and registration of certificates for shares
of the Corporation.
Section 6. Lost, Destroyed, and Mutilated Certificates. The holder of any
shares shall immediately notify the Corporation of any loss, destruction, or
mutilation of the certificate therefor and the Board of Directors, in its
discretion, may cause to be issued to him a new certificate or certificates upon
surrender of the mutilated certificate
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or, in case of loss or destruction of the certificate, upon satisfactory proof
of such loss or destruction. The Board of Directors, in its discretion, may
require the owner of the lost or destroyed certificate or his legal
representative to give the Corporation a bond, in such sum (not exceeding twice
the value of such shares) and with such surety or sureties as it may direct, to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss or destruction of any such certificate.
Section 7. Fixing of Record Dates. The Board of Directors shall have the
power to fix in advance a date, not more than sixty (60) nor less than ten (10)
days, preceding the date of any meeting of shareholders, the date for the
payment of any dividend or allotment of any right, the date when any change,
conversion, or exchange of shares shall go into effect, or for the purpose of
any other action, as a record date for the determination of the shareholders
entitled to notice of and to vote at any such meeting, entitled to receive
payment of any such dividend or allotment of any right, entitled to exercise the
rights in respect to any such change, conversion, or exchange of shares, or
entitled to participate in or be entitled to the benefit of any such other
action. Whenever a record date has been so fixed, only shareholders of record on
such date shall be entitled to notice of and to vote at such meeting, to receive
payment of any such dividend or allotment of any right, to exercise such rights
in respect to any such change, conversion, or exchange of shares, or to
participate in or be entitled to the benefit of any such other action.
ARTICLE VIII
Dividends and Surplus
Subject to any restrictions imposed by statute, the Board of Directors from
time to time, in its discretion, may fix and vary the amount of the working
capital of the Corporation and determine what, if any, dividends shall be
declared and paid to the shareholders out of the surplus of the Corporation. The
Board of Directors, in its discretion, may use and apply any surplus in
purchasing or acquiring any of the shares of the Corporation in accordance with
law or any of its bonds, debentures, or other obligations, or from time to time
may set aside from such surplus such sum or sums as it, in its absolute
discretion, may deem proper as a reserve fund to meet contingencies or for
equalizing dividends, for the purpose of maintaining or increasing the property
or business of the Corporation, or for any other purposes it may deem conducive
to the best interest of the Corporation. All such surplus, until actually
declared in dividends or used and applied as aforesaid, shall be deemed to be so
set aside by the Board of Directors for one or more of said purposes.
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ARTICLE IX
Corporation Seal
The Corporation shall have a corporate seal which shall be in circular
form, shall bear the name of the Corporation and the words and figures denoting
its organization under the laws of the State of and the year thereof and
otherwise shall be in such form as shall be approved from time to time by the
Board of Directors.
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE XI
Accountants
The Board of Directors of the Corporation from time to time shall designate
the independent accountants of the Corporation.
ARTICLE XII
Amendments
All Bylaws of the Corporation shall be subject to amendment, alteration, or
repeal, and new Bylaws not inconsistent with my provision of the Certificate of
Incorporation of the Corporation or any provision of law may be made, by the
shareholders or by the Board of Directors, except as otherwise expressly
required by statute. Any Bylaw adopted, amended, or repealed by the shareholders
may be amended or repealed by the Board of Directors, unless the resolution of
the shareholders adopting such Bylaw expressly reserves the right to amend or
repeal it to the shareholders
ARTICLE XIII
Force and Effect
These Bylaws are subject to the provisions of the Business Corporation Act,
the Professional Service Corporation Act, and the Certificate of Incorporation,
as the same may be amended from time to time, If any provision in these Bylaws
is inconsistent with an express provision of either of such Acts or the
Certificate of Incorporation, the provision of such Acts or the Certificate of
Incorporation, as the case may be, shall govern to the extent of such
inconsistency.
