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EXHIBIT 3.1
BY-LAWS
OF
AMEDORE HOMES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF
NEW YORK
ARTICLE I
OFFICES AND RECORDS
Section 1.1. NEW YORK OFFICE. The principal office of the Corporation in
the State of New York shall be located in Schenectady, New York, and the name of
its registered agent is the New York Secretary of State.
Section 1.2. OTHER OFFICES. The Corporation may have such other offices,
either within or without the State of New York, as the Board of Directors may
designate or as the business of the Corporation may from time to time require.
Section 1.3. BOOKS AND RECORDS. The books and records of the Corporation
may be kept at the Corporation's headquarters or at such other locations outside
the State of New York as may from time to time be designated by the Board of
Directors.
ARTICLE II
SHAREHOLDERS
Section 2.1. ANNUAL MEETINGS. An annual meeting of shareholders shall be
held for the election of directors at such date, time and place, either within
or without the State of New York, as may be designated by resolution of the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 2.2. SPECIAL MEETINGS. Special meetings of shareholders for any
purpose or purposes may be called at any time by the Chairman of the Board or a
majority of the members of the Board of Directors.
Section 2.3. NOTICE OF MEETINGS. Whenever shareholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given that shall state the place, date and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the Certificate of Incorporation or
these By-laws, the written notice of any meeting shall be given not less than
ten or more than sixty days before the date of the meeting to each shareholder
entitled to vote at such meeting. If mailed,
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such notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the shareholder at his or her address as it
appears on the records of the Corporation.
Section 2.4. ADJOURNMENTS. Any meeting of shareholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting.
Section 2.5. QUORUM. Except as otherwise provided by law, the
Certificate of Incorporation or these By-laws, at each meeting of shareholders
the presence in person or by proxy of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall be necessary and
sufficient to constitute a quorum. In the absence of a quorum, the shareholders
so present may, by majority vote, adjourn the meeting from time to time in the
manner provided in Section 2.4 of these By-laws until a quorum shall attend.
Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the Corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 2.6. ORGANIZATION. Meetings of shareholders shall be presided
over by the Chairman of the Board, or in his or her absence by the Chief
Financial Officer, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 2.7. VOTING.
(a) Except as otherwise provided by law, the Certificate of
Incorporation, or these By-laws, any corporate action, other than the election
of Directors, the affirmative vote of the majority of shares entitled to vote on
that matter and represented either in person or by proxy at a meeting of
shareholders at which a quorum is present shall be the act of the shareholders
of the Corporation.
(b) Unless otherwise provided for in the Certificate of
Incorporation of the Corporation, Directors will be elected by a plurality of
the votes cast by the shares, present in person or by proxy, entitled to vote in
the election at a meeting at which a quorum is present and each shareholder
entitled to vote has the right to vote the number of shares owned by him for as
many persons as there are Directors to be elected.
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(c) Except as otherwise provided by statute, the Certificate of
Incorporation, or these By-laws, at each meeting of shareholders, each
shareholder of the Corporation entitled to vote thereat, shall be entitled to
one vote for each share registered in his name on the books of the Corporation.
Section 2.8 PROXIES. Each shareholder entitled to vote or to express
consent or dissent without a meeting, may do so either in person or by proxy, so
long as such proxy is executed in writing by the shareholder himself, or by his
attorney-in-fact thereunto duly authorized in writing. Every proxy shall be
revocable at will unless the proxy conspicuously states that it is irrevocable
and the proxy is coupled with an interest. A telegram, telex, cablegram, or
similar transmission by the shareholder, or as a photographic, photostatic,
facsimile, shall be treated as a valid proxy, and treated as a substitution of
the original proxy, so long as such transmission is a complete reproduction
executed by the shareholder. No proxy shall be valid after the expiration of
three years from the date of its execution, unless otherwise provided in the
proxy. Such instrument shall be exhibited to the Secretary at the meeting and
shall be filed with the records of the Corporation.
Section 2.9 ACTION WITHOUT A MEETING. Unless otherwise provided for in
the Certificate of Incorporation of the Corporation, any action to be taken at
any annual or special shareholders' meeting, may be taken without a meeting,
without prior notice and without a vote if a written consent or consents is/are
signed by the shareholders of the Corporation having not less than the minimum
number of votes necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereat were present and voted is delivered by hand
or by certified or registered mail, return receipt requested, to the Corporation
to its principal place of business or an officer or agent of the Corporation
having custody of the books in which proceedings of shareholders' meetings are
recorded.
Section 2.10. FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF
RECORD. In order that the Corporation may determine the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, 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: (i) in the case of
determination of shareholders entitled to vote at any meeting of shareholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
fifty nor less than ten days before the date of such meeting and (ii) in the
case of any other action, shall not be more than fifty days prior to such other
action. If no record date is fixed: (i) the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders 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 and (ii) the record date for
determining shareholders for any other purpose shall be at the close of business
on the day
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on which the Board of Directors adopts the resolution relating thereto. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders 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.
Section 2.11. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The Secretary shall
prepare and make, at least ten days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder and the number
of shares registered in the name of each shareholder. Such list shall be open to
the examination of any shareholder, 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 shareholder who is present. The stock ledger
shall be the only evidence as to which shareholders are entitled to examine the
stock ledger, the list of shareholders or the books of the Corporation, or to
vote in person or by proxy at any meeting of shareholders.
Section 2.12. CONDUCT OF MEETINGS. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of shareholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of shareholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to shareholders of record of the
Corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of shareholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 2.13. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS.
The Board of Directors by resolution may appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act, or if all inspectors or alternates who have been appointed are
unable to act, at a meeting of shareholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Each
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inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by the Business Corporation Law of the State of New York. The
chairman of the meeting shall fix and announce at the meeting the date and time
of the opening and the closing of the polls for each matter upon which the
shareholders will vote at a meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these By-laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by law, by the Certificate of
Incorporation or by these By-laws required to be exercised or done by the
shareholders.
Section 3.2. NUMBER; QUALIFICATIONS. The Board of Directors shall
consist of not less than one (1) or more than nine (9) members, the exact number
to be determined from time to time by resolution of the Board of Directors.
Directors need not be shareholders or residents of the State of New York.
Section 3.3. ELECTION, RESIGNATION. The first Board of Directors shall
hold office until the first annual meeting of shareholders and until their
successors have been duly elected and qualified or until there is a decrease in
the number of Directors. Thereinafter, each Director will be elected at the
annual meeting of shareholders and shall hold office until the annual meeting of
the shareholders next succeeding his election, or until his prior death,
resignation or removal. Any Director may resign at any time upon written notice
to the Board of Directors, the Chief Executive Officer or the Secretary of the
Corporation. Such resignation shall be effective upon receipt unless the notice
specifies a later time for that resignation to become effective.
Section 3.4. VACANCIES. Any newly created directorship resulting from an
increase in the authorized number of Directors or any vacancy occurring in the
Board of Directors by reason of death, resignation, retirement,
disqualification, removal from office or any other cause may be filled by the
affirmative vote of the remaining members of the Board of Directors, though less
than a quorum of the Board of Directors, and each Director so elected shall hold
office until the expiration of the term of office of the Director whom he or she
has replaced or until his or her successor is elected and qualified. If there
are no Directors in office, then an election of Directors may be held in the
manner provided by statute. No decrease in the number of Directors constituting
the whole Board shall shorten the term of any incumbent Director.
Section 3.5. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such places within or without the State of New York and
at such times as the Board of Directors may from time to time determine, and if
so determined notices thereof need not be given.
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Section 3.6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time or place within or without the State of New
York whenever called by the Chairman of the Board, the Chief Executive Officer,
the Secretary, or by any two members of the Board of Directors. Notice of the
date, time and place of a special meeting of the Board of Directors shall be
delivered by the person or persons calling the meeting personally, by facsimile
or by telephone to each Director or sent by first-class mail or telegram,
charges prepaid, addressed to each Director at that Directors' address as it is
shown on the records of the Corporation. If the notice is mailed, it shall be
deposited in the United States mail at least four days before the time of the
holding of the meeting. If the notice is delivered personally or by telephone or
telegraph, it shall be delivered at least forty-eight hours before the time of
the holding of the special meeting. If by facsimile transmission, such notice
shall be transmitted at least twenty-four hours before the time of holding of
the special meeting. Any oral notice given personally or by telephone may be
communicated either to the Director or to a person at the office of the Director
who the person giving the notice has reason to believe will promptly communicate
it to the Director. The notice need not specify the purpose or purposes of the
special meeting or the place of the special meeting, if the meeting is to be
held at the principal office of the Corporation.
Section 3.7. TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 3.8. QUORUM; VOTE REQUIRED FOR ACTION; ADJOURNMENT. At all
meetings of the Board of Directors a majority of the whole Board of Directors
shall constitute a quorum for the transaction of business. Except in cases in
which the Certificate of Incorporation or these By-laws otherwise provide, the
vote of a majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. A majority of the Directors
present, whether or not a quorum, may adjourn any meeting to another time and
place. Notice of the time and place of holding an adjourned meeting need not be
given unless the meeting is adjourned for more than twenty-four hours. If the
meeting is adjourned for more than twenty-four hours, then notice of the time
and place of the adjourned meeting shall be given to the Directors who were not
present at the time of the adjournment in the manner specified in Section 3.6.
Section 3.9. ORGANIZATION. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in his or her absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 3.10. INFORMAL ACTION BY DIRECTORS. Unless otherwise restricted
by the Certificate of Incorporation or these By-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or such committee, as the case may be, consent thereto in
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writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or such committee.
Section 3.11. FEES AND COMPENSATION OF DIRECTORS. Directors and members
of committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Board of Directors. This Section 3.11 shall not be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, employee or otherwise and receiving compensation for those services.
Section 3.12 REMOVAL. One or more or all the Directors of the
Corporation may be removed with or without cause at any time by the
shareholders, at a special meeting of the shareholders called for that purpose,
unless the Certificate of Incorporation provides that Directors may only be
removed for cause, provided however, such Director shall not be removed if the
Certificate of Incorporation or By-laws provides that its Directors shall be
elected by cumulative voting and there are a sufficient number of shares cast
against his or her removal, which if cumulatively voted at an election of
Directors would be sufficient to elect him or her.
ARTICLE IV
COMMITTEES
Section 4.1. COMMITTEES. The Board of Directors may designate from among
its members one or more standing or special committees, each committee to
consist of one 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. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
permitted by law and to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority 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.
Section 4.2. COMMITTEE RULES. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these By-laws.
Section 4.3. MINUTES OF MEETINGS. All committees appointed in accordance
with Section 4.1 shall keep regular minutes of their meetings and shall cause
them to be recorded in books kept for that purpose in the office of the
Corporation.
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ARTICLE V
OFFICERS
Section 5.1. DESIGNATIONS. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial
Officer, a Secretary and, at the discretion of the Board of Directors, one or
more Vice-Presidents (one or more of whom may be Executive Vice-Presidents), a
Treasurer, Assistant Secretaries and Assistant Treasurers. The Board of
Directors shall appoint all officers. Any two or more offices may be held by the
same individual.
Section 5.2. APPOINTMENT AND TERM OF OFFICE. The officers of the
Corporation shall be appointed annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of the
shareholders. Each officer shall hold office until a successor shall have been
appointed and qualified, or until such officer's earlier death, resignation or
removal.
Section 5.3. POWERS AND DUTIES. If the Board appoints persons to fill
the following positions, such officers shall have the power and duties set forth
below:
(a) THE CHAIRMAN: The Chairman shall have general control and
management of the Board of Directors and may also be the chief executive officer
of the Corporation. He or she shall preside at all meetings of the Board of
Directors at which he or she is present. He or she shall have such other powers
and perform such other duties as from time to time may be conferred or imposed
upon him or her by the Board of Directors.
(b) THE CHIEF EXECUTIVE OFFICER: The Chief Executive Officer of
the Corporation shall be generally responsible for the proper conduct of the
business of the Corporation. He or she shall possess power to sign all
certificates, contracts and other instruments of the Corporation. In the absence
of the Chairman, he or she shall preside at all meetings of the shareholders. He
or she shall perform all such other duties as are incident to his or her office
or are properly required of him or her by the Board of Directors.
(c) THE PRESIDENT: The President of the Corporation shall be
generally responsible for the day to day operations of the business of the
Corporation. He or she shall possess power to sign all certificates, contracts
and other instruments of the Corporation. In the absence of the Chairman and the
Chief Executive Officer, he or she shall preside at all meetings of the
shareholders. He or she shall perform all such other duties as are incident to
his or her office or are properly required of him or her by the Chief Executive
Officer or the Board of Directors.
(d) VICE PRESIDENT: Each Vice-President shall have such powers
and discharge such duties as may be assigned to him or her from time to time by
the President or the Board of Directors.
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(e) SECRETARY AND ASSISTANT SECRETARIES: The secretary shall
issue notices for all meetings, shall keep minutes of all meetings, shall have
charge of the seal and the corporate books, and shall make such reports and
perform such other duties as are incident to his or her office, or are properly
required of him or her by the Board of Directors. The Assistant Secretary, or
Assistant Secretaries in order designated by the Board of Directors, shall
perform all of the duties of the Secretary during the absence or disability of
the Secretary, and at other times may perform such duties as are directed by the
President or the Board of Directors.
(f) CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep or cause to be kept adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any Director. The chief financial officer shall
(1) deposit corporate funds and other valuables in the Corporation's name and to
its credit with depositories designated by the Board of Directors; (2) make
disbursements of corporate funds as authorized by the Board of Directors; (3)
render a statement of the corporation's financial condition and an account of
all transactions conducted as chief financial officer whenever requested by the
President or the Board of Directors; and (4) have other powers and perform other
duties as prescribed by the President or the Board of Directors or the By-laws.
Unless the Board of Directors has elected a separate treasurer, the chief
financial officer shall be deemed to be the treasurer for purposes of giving any
reports or executing any certificates or other documents.
Section 5.4. DELEGATION. In the case of the absence or inability to act
of any officer of the Corporation and of any person herein authorized to act in
such officer's place, the Board of Directors may from time to time delegate the
powers or duties of such officer to any other officer or any Director or other
person whom it may in its sole discretion select.
Section 5.5. VACANCIES. Vacancies in any office arising from any cause
may be filled by the Board of Directors at any regular or special meeting of the
Board. The appointee shall hold office for the unexpired term and until his or
her successor is duly elected and qualified.
Section 5.6. OTHER OFFICERS. The Board of Directors, or a duly appointed
officer to whom such authority has been delegated by Board resolution, may
appoint such other officers and agents as it shall deem necessary or expedient,
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors.
Section 5.7. RESIGNATION. An officer may resign at any time by
delivering notice to the Corporation. Such notice shall be effective when
delivered unless the notice specifies a later effective date. Any such
resignation shall not affect the Corporation's contract rights, if any, with the
officer.
Section 5.8. REMOVAL. Any officer elected or appointed by the Board of
Directors may
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be removed at any time, with or without cause, by the affirmative vote of a
majority of the whole Board of Directors, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Section 5.9. BONDS. The Board of Directors may, by resolution, require
any and all of the officers to give bonds to the Corporation, with sufficient
surety or sureties, conditioned for the faithful performance of the duties of
their respective offices, and to comply with such other conditions as may from
time to time be required by the Board of Directors.
ARTICLE VI
STOCK
Section 6.1. ISSUANCE OF SHARES. No shares of the Corporation shall be
issued unless authorized by the Board of Directors or a duly constituted
committee thereof. Such authorization shall include the number of shares to be
issued, the consideration to be received and a statement regarding the adequacy
of the consideration.
Section 6.2. CERTIFICATES. Every holder of stock 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, if any, or the Chief Executive
Officer or a Vice President, and by the Chief Financial Officer, or the
Secretary or an Assistant Secretary, of the Corporation certifying the number of
shares owned by him or her in the Corporation. Any of or all the signatures on
the certificate may be a facsimile. 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.
Section 6.3. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF
NEW CERTIFICATES. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his or her legal representative, to give the
Corporation indemnification or a bond sufficient to indemnify it 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 such new certificate.
Section 6.4. TRANSFERS OF STOCK.
(a) Transfers of stock shall be made only upon the stock transfer
records of the Corporation, which records shall be kept at the registered office
of the Corporation or at its principal place of business, or at the office of
its transfer agent or registrar. The Board of Directors may, by resolution, open
a share register in any state of the United States, and may employ an agent or
agents to keep such register and to record transfers of shares therein.
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(b) Shares of certificated stock shall be transferred by delivery
of the certificates therefor, accompanied either by an assignment in writing on
the back of the certificates or an assignment separate from the certificate, or
by a written power of attorney to sell, assign and transfer the same, signed by
the holder of said certificate. No shares of certificated stock shall be
transferred on the records of the Corporation until the outstanding certificates
therefor have been surrendered to the Corporation or to its transfer agent or
registrar.
Section 6.5. SHARES OF ANOTHER CORPORATION. Shares owned by the
Corporation in another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the Board of Directors may determine or, in the
absence of such determination, by the Chief Executive Officer of the
Corporation.
ARTICLE VII
INDEMNIFICATION
Section 7.1. RIGHT TO INDEMNIFICATION. The Corporation may indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, 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 or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by such
person. Notwithstanding the preceding sentence, the Corporation shall be
required to indemnify a person in connection with a proceeding (or part thereof)
initiated by such person only if the proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
Section 7.2. PREPAYMENT OF EXPENSES. The Corporation shall pay the
expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition; provided, however, that the payment of
expenses incurred by a Director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified under
this Article VII or otherwise.
Section 7.3. CLAIMS. If a claim for indemnification or payment of
expenses under this Article VII is not paid in full within sixty days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 7.4. NONEXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article VII shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-laws, agreement, vote of shareholders or
Directors or otherwise.
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Section 7.5. OTHER INDEMNIFICATION. The Corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
Section 7.6. AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article VII shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 8.2. SEAL. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 8.3. WAIVER OF NOTICE OF MEETINGS OF SHAREHOLDERS, DIRECTORS AND
COMMITTEES. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the shareholders, Directors or members of a
committee of Directors need be specified in any written waiver of notice.
Section 8.4. INTERESTED DIRECTORS; QUORUM. No contract or transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as
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to his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
shareholders. Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 8.5. BOOKS AND RECORDS. The Corporation shall maintain
appropriate accounting records and shall keep as permanent records minutes of
all meetings of its shareholders and Board of Directors, a record of all actions
taken by the Board of Directors without a meeting and a record of all actions
taken by a committee of the Board of Directors. In addition, the Corporation
shall keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of its shareholders, giving
the names and addresses of all shareholders in alphabetical order by class of
shares showing the number and class of the shares held by each. Any books,
records and minutes may be in written form or any other form capable of being
converted into written form within a reasonable time.
Section 8.6. AMENDMENT OF BY-LAWS. In furtherance and not in limitation
of the powers conferred upon it by law, the Board of Directors is expressly
authorized to adopt, repeal or amend the By-laws of the Corporation by the vote
of a majority of the entire Board of Directors. The By-laws of the Corporation
shall be subject to alteration or repeal, and new By-laws may be made, by a
majority vote of the shareholders at the time entitled to vote in the election
of Directors even though these By-laws may also be altered, amended or repealed
by the Board of Directors.
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