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BY-LAWS
OF
ARTHUR TREACHER'S, INC.
(A Delaware Corporation)
ARTICLE I
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders of the
corporation shall be held at the office of the corporation in the State of
Delaware or at such other place within or without the State of Delaware, and on
such date in each calendar year as may be determined by the Board of Directors
and as shall be designated in the notice of said meeting, for the purpose of
electing directors and for the transaction of such other business as may
properly be brought before the meeting. A failure to hold the annual meeting on
the date so fixed or to elect a sufficient number of directors to conduct the
business of the corporation, shall not work a forfeiture or give cause for
dissolution of the corporation, except as provided by the General Corporation
Law.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders shall be
held at the office of the corporation in the State of Delaware, or at such other
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors. Whenever the Board of Directors shall fail to
fix such place, or whenever shareholders entitled to call a special meeting
shall call the same, the meeting shall be held at the office of the corporation
in the State of Delaware. Special meetings of the shareholders shall be held
upon call of the Board of Directors, of the Chairman of the Board, if any or of
the President, of any Vice-President, of the Secretary or of any two directors,
at such time as may be fixed by the Board of Directors or by the President, such
Vice-President, the Secretary or such two directors, as the case may be, and as
shall be stated in the notice of said meeting, except when the General
Corporation Law confers upon the shareholders the right to demand the call of
such meeting and to fix the date thereof. At any such special meeting only such
business may be transacted which is related to the purpose or purposes set forth
in the notice required by the General Corporation Law.
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SECTION 3. NOTICE OF MEETINGS. The notice of all meetings shall be in
writing, shall state the place, date and hour of the meeting, and, unless it is
the annual meeting, shall indicate that it is being issued by, or at the
direction of, the person or persons calling the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of directors and
for the transaction of such other business as may properly come before the
meeting, and shall state the purpose or purposes of the meeting if any other
action is to be taken at such annual meeting which could be taken at a special
meeting. The notice of a special meeting shall state the purpose or purposes for
which the meeting is called. If the Board of Directors shall adopt, amend, or
repeal a by-law regulating an impending election of directors, the notice of the
next meeting for the election of directors shall contain the statements
prescribed by law. If any action is proposed to be taken which would, if taken,
entitle the shareholders to receive payment for their shares, the notice shall
include a statement of that purpose and to that effect and shall be accompanied
by any notice that may be required by the General Corporation Law or an outline
of its material terms. A copy of the notice of any meeting of shareholders shall
be served either personally or by first-class mail, not fewer than ten days nor
more than fifty days before the date of the meeting, provided, however, that a
copy of such notice may be given by third-class mail not fewer than twenty-four
nor more than fifty days before the date of the meeting, to each shareholder at
his record address or at such other address as he may have furnished by request
in writing to the Secretary of the Corporation. An affidavit of the Secretary or
other person giving the notice or of a transfer agent of the corporation that
the notice required by this section has been given shall, in the absence of
fraud, be prima facie evidence of the facts therein stated. If a meeting is
adjourned to another time or place and if any announcement of the adjourned time
or place is made at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the Board of Directors, after adjournment, fixes a new
record date for the adjourned meeting. Notice of a meeting need not be given to
any shareholder who submits a signed waiver of notice, in person or by proxy,
before or after the meeting. The attendance of a shareholder at a meeting, in
person or by proxy, without protesting prior to the conclusion of the meeting
the lack of notice of such meeting, shall constitute a waiver of notice by him.
SECTION 4. QUORUM. The holders of record of a majority of the outstanding
shares of the corporation entitled to vote at the meeting, present in person or
by proxy, shall, except as otherwise provided by law or the Certificate of
Incorporation, constitute a quorum at all meetings of the shareholders; if there
be no such quorum, the holders of a majority of such shares so present or so
represented may adjourn the meeting from time to time, without further notice,
until a quorum shall have been obtained. When a quorum is once present to
organize a meeting, it is not broken by the subsequent withdrawal of any
shareholders.
SECTION 5. PRESIDING OFFICER. Meetings of the shareholders shall be
presided over by the President, or, if he is not present, by a Vice-President,
or if neither the President nor a Vice-President is present, by a chairman to be
chosen at the meeting. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present, the meeting shall choose any
person present to act as secretary of the meeting.
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SECTION 6. VOTING: RECORD DATE; LIST OF SHAREHOLDERS; PROXIES; INSPECTORS.
Every shareholder entitled to vote at any meeting may so vote by proxy and shall
be entitled to one vote for each share entitled to vote and held by him. At all
elections of directors the voting may, but need not, be by ballot, and a
plurality of the votes cast thereat shall elect. Except as otherwise required by
law, or by the Certificate of Incorporation, any other action shall be
authorized by a majority of the votes cast.
For the purpose of determining the shareholders entitled to notice of, or
to vote at, any meeting of shareholders or any adjournment thereof, or to
express consent to, or dissent from, any proposal without a meeting, or for the
purpose of determining the shareholders entitled to receive payment of any
dividend or the allotment of any rights, or for the purpose of any other action,
the Board of Directors may fix, in advance, a date as the record date for any
such determination of shareholders. Such date shall not be more than fifty days
nor less than ten days before the date of such meeting, nor more than fifty days
prior to any other action. If no record date is fixed, the record date for the
determination of 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 no notice is given, the day on which the
meeting is held; the record date for determining shareholders for any purpose,
other than that specified in the preceding clause, shall be at the close of
business on the day on which the resolution of the directors relating thereto is
adopted. When a determination of shareholders of record entitled to notice of,
or to vote at, any meeting of shareholders has been made as provided in this
paragraph, such determination shall apply to any adjournment thereof, unless the
Board of Directors fixes a new record date under this paragraph for the
adjourned meeting.
A list of shareholders as of the record date, certified by the Secretary or
other officer responsible for its preparation, or by the transfer agent, if any,
shall be produced at any meeting of shareholders upon the request thereat, or
prior thereto, of any shareholder. If the right to vote at any meeting is
challenged, the inspectors of election, if any, or the person presiding thereat,
shall require such list of shareholders to be produced as evidence of the right
of the persons challenged to vote at such meeting, and all persons who appear
from such list to be the shareholders entitled to vote thereat may vote at such
meeting.
Every shareholder may authorize another person or persons to act for him by
proxy in all matters in which a shareholder is entitled to participate, whether
by waiving notice of any meeting, voting or participating at a meeting, or
expressing consent or dissent without a meeting. Every proxy must be signed by
the shareholder or his attorney-in-fact. No proxy shall be valid after the
expiration of eleven months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the shareholder
executing it, except as otherwise provided by the General Corporation Law.
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The Board of Directors, in advance of any meeting, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at the meeting may, and on the request of
any shareholder entitled to vote thereat shall, appoint one or more inspectors.
In case any person appointed fails to appear or act, the vacancy may be filled
by appointment made by the Board of Directors in advance of the meeting, or at
the meeting by the person presiding thereat. Each inspector, if any, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the meeting
or of any shareholder entitled to vote thereat, the inspectors shall make a
report in writing of any challenge, question or matter determined by them and
execute a certificate of any fact found by them. Any report or certificate made
by them shall be prima facie evidence of the facts stated and of the vote as
certified by them. Each inspector shall be entitled to reasonable compensation
for his services, to be paid by the corporation.
SECTION 7. ACTION WITHOUT MEETING. Whenever shareholders are required or
permitted to take any action by vote, such action may be taken without a meeting
on written consent setting forth the action so taken, signed by the holders of
outstanding shares having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Written consent thus given by
the holders of all outstanding shares entitled to vote shall have the same
effect as a vote of shareholders at a duly convened meeting and any certificate
with respect to the authorization or taking of any such action which is to be
delivered to the Department of State shall recite that the authorization was by
written consent.
When there are no shareholders of record, such action may be taken on the
written consent signed by a majority in interest of the subscribers for shares
whose subscriptions have been accepted or their successors in interest or, if no
subscription has been accepted, on the written consent signed by the
incorporator or a majority of the incorporators. When there are two or more
incorporators, if any dies or is for any reason unable to act, the other or
others may act. If there is no incorporator able to act, any person for whom an
incorporator was acting as agent may act in his stead, or if such other person
also dies or is for any reason unable to act, his legal representative may act.
SECTION 8. MEANING OF "SHAREHOLDERS". As used herein in respect of the
right to notice of a meeting of shareholders, or to a waiver thereof, or to
participate or vote thereat, or to consent or dissent in writing in lieu of a
meeting, as the case may be, the term "shares" or "shareholders" refers to an
outstanding share or shares and to a holder or holders of record of an
outstanding share or shares, when the corporation is authorized to issue only
one class of shares, and said reference is also intended to include any
outstanding share or shares and any holder or holders of record of outstanding
shares of any class upon which or upon whom the Certificate of Incorporation
confers such rights where there are two or more classes or series of shares, or
upon which or upon whom the General Corporation Law confers such rights,
notwithstanding that the Certificate of Incorporation may provide for more than
one class or series of shares, one or more of which are limited or denied such
rights thereunder.
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ARTICLE II
DIRECTORS
SECTION 1. ROLE OF DIRECTORS; AGE REQUIREMENT; NUMBER. The business of the
corporation shall be managed by its Board of Directors. The use of the phrase
"entire Board of Directors" herein refers to the total number of directors which
the corporation would have if there were no vacancies.
Each director shall be at least eighteen (18) years of age. A director need
not be a shareholder, a citizen of the United States, or a resident of the State
of Delaware. The number of directors constituting the entire Board of Directors
shall initially be at least three; however, so long as the shares of the
corporation shall be owned beneficially and of record by fewer than five
shareholders, the number of directors may be less than three, but not less than
the number of shareholders. The number of directors may be increased or
decreased from time to time by action of the Board of Directors or of the
shareholders, provided that any action of the Board of Directors to effect such
increase or decrease shall require the vote of a majority of the entire Board of
Directors. No decrease shall shorten the term of any incumbent director.
Nothwithstanding anything else in this Article II Section 1, Jeffrey
Bernstein shall have the right to designate one member of the Board of Directors
and, if from time to time and at such times that the Board of Directors shall
increase the authorized number of directors to a number of directors greater
than five (5) members, Jeffrey Bernstein shall have the right to designate such
number of directors as is closest to twenty percent (20%) of the entire Board of
Directors.
SECTION 2. TERM; VACANCIES. The first Board of Directors shall be elected
by the incorporator or incorporators and shall hold office until the first
annual meeting of shareholders and until their respective successors have been
elected and qualified. Thereafter, directors who are elected at an annual
meeting of shareholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
annual meeting of shareholders and until their respective successors have been
elected and qualified. Newly created directorships and any vacancies in the
Board of Directors, including vacancies resulting from the removal of directors
for cause or without cause, may be filled by vote of a majority of the directors
then in office, although less than a quorum exists. Nothing in this paragraph
shall affect any provision of the certificate of incorporation which provides
that such newly created directorships or vacancies shall be filled by vote of
the shareholders, or any provision of the certificate of incorporation
specifying greater requirements as permitted by law.
SECTION 3. QUORUM AND VOTING. A majority of the entire Board of Directors
shall constitute a quorum for the transaction of business. A majority of the
directors present, whether or not a quorum is present, may adjourn a meeting to
another time and place. Except as herein otherwise provided, the vote of a
majority of the directors present at the time of the vote at a meeting duly
assembled, a quorum being present at such time, shall be the act of the Board of
Directors.
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SECTION 4. MEETINGS. Meetings of the Board of Directors shall be held at
such place within or without the State of Delaware as may from time to time be
fixed by resolution of the Board of Directors, or as may be specified in the
notice of the meeting. Regular meetings of the Board of Directors shall be held
at such times as may from time to time be fixed by resolution of the Board of
Directors. Special meetings may be held at any time upon the call of the
Chairman of the Board, if any, or of the President or any Vice-President or the
Secretary or any director by written notice personally served upon, or by
telegraphic or telecopy notice sent to, each director not less than one day
before such meeting or by written notice mailed to each director not less than
five days before the date of such meeting. A meeting of the Board of Directors
may be held without notice immediately after the annual meeting of shareholders
at the same place at which such meeting is held. Notice need not be given of
regular meetings of the Board of Directors held at times fixed by resolution of
the Board of Directors. Any requirement of furnishing a notice shall be waived
by any director who signs a waiver of notice before or after a meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to him. The notice of any meeting need not specify the
purpose of the meeting, and any and all business may be transacted at such
meeting. The Chairman of the Board of Directors, if any, shall preside at all
meetings of the Board of Directors, and in his absence or inability to act, the
President shall preside, and in his absence or inability to act, such person as
may be chosen by the meeting shall preside. Any one or more members of the Board
of Directors or any committee thereof may participate in any meeting of such
Board or committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
SECTION 5. EXECUTIVE COMMITTEE. By resolution adopted by a majority of the
entire Board of Directors, the directors may designate from their number two or
more directors to constitute an Executive Committee and other committees, each
of which, to the extent provided in the resolution designating it, shall have
the authority of the Board of Directors with the exception of any authority the
delegation of which is prohibited by law. A majority of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
power at any time to fill vacancies in, to change the membership of, to
designate alternate members of, or to discharge any such committee.
SECTION 6. ACTION BY CONSENT. Notwithstanding any other provision of these
By-Laws, any action required or permitted to be taken by the Board of Directors,
the Executive Committee or any other committee of the Board of Directors
designated pursuant to these By-Laws, may be taken without a meeting if all the
members of the Board of Directors or the committee consent in writing to the
adoption of a resolution authorizing the action. The resolution and the written
consents thereto by the members of the Board of Directors or committee shall be
filed with the minutes of the proceedings of the Board of Directors or
committee.
SECTION 7. DECLARATION OF DIVIDENDS. Subject to the provisions of law and
the Certificate of Incorporation, the Board of Directors shall have full power
to determine whether any, and if any, what part of any, funds legally available
for the payment of dividends shall be declared as dividends and paid to
shareholders, the division of the whole or any part of such funds of the
corporation shall rest wholly within the lawful discretion of the Board of
Directors, and it shall not be required at any time, against such discretion, to
divide or pay any part of such funds among or to the shareholders as dividends
or otherwise, and before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
Board of Directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such other
purpose as the Board shall think conducive to the interest of the corporation,
and the Board may modify or abolish any such reserve in the manner in which it
was created.
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SECTION 8. REMOVAL OF DIRECTORS. Subject to the provision of the General
Corporation Law, (a) at any special or regular meeting of the shareholders duly
called as provided in these By-Laws, any director or directors may be removed
from office by vote of the shareholders, either with or without cause, and his
successor or their successors may be elected at such meeting or thereafter at a
duly called meeting for that purpose and (b) one or more directors may be
removed for cause by the Board of Directors subject to the limitations of
Section 702 of the General Corporation Law.
ARTICLE III
OFFICERS
SECTION 1. ELECTION. The Board of Directors of the Corporation, promptly
after the election thereof held in each year, may elect or appoint a Chairman of
the Board of Directors, a president, one or more Vice-Presidents, a Secretary
and a Treasurer, and from time to time may appoint such Assistant Secretaries,
Assistant Treasurers and such other officers, agents and employees as it may
deem proper. Any two or more offices may be held by the same person, except the
offices of President and Secretary. When all of the issued and outstanding stock
of the corporation is owned by one person, such person may hold all or any
combination of offices. The President may, but need not, be chosen from among
the directors. The Chairman of the Board of Directors, if any, shall be chosen
from among the directors.
SECTION 2. TERM. The term of office of all officers shall be one year and
until their respective successors have been elected and qualified, but any
officer may be removed from office, either with or without cause at any time by
the Board of Directors. A vacancy in any office arising from any cause may be
filled for the unexpired portion of the term by the Board of Directors.
SECTION 3. DUTIES. The officers of the corporation shall each have such
powers and duties as are set forth in these By-Laws and as generally pertain to
their respective offices, and as from time to time may be conferred upon them by
the Board of Directors. The Chairman of the Board of Directors, if there be a
Chairman, shall preside at all meetings of the Board of Directors and shall have
such other powers and duties as may from time to time be assigned by the Board
of Directors. The President shall be the chief executive officer of the
corporation and shall have the general management and superintendence of the
affairs of the corporation, subject to direction of the Board of Directors. He
shall preside at all meetings of the shareholders and, in the absence or
disability of the Chairman of the Board of Directors, or if there be no
Chairman, shall preside at all meetings of the Board of Directors. The Secretary
shall keep the minutes of meetings of the Board of Directors and of the
shareholders, shall be the custodian of the records and of the seal of the
corporation, shall attend to all correspondence, and shall perform other duties
incidental to such office. The Treasurer shall have care and custody of the
funds and securities of the corporation, shall keep complete and accurate books
of account and financial records of the corporation, shall render financial
reports to the Board of Directors and the shareholders, and shall perform other
duties incidental to such office. The Vice-President or Vice-Presidents, the
Assistant Secretary or Assistant Secretaries, the Assistant Treasurer or
Assistant Treasurers shall, in the order of their respective seniorities if
there are more than such officers, in the absence or disability of the
President, Secretary or Treasurer, respectively, perform the duties of such
officer and shall generally assist the President, Secretary or Treasurer,
respectively.
SECTION 4. DELEGATION OF DUTIES. Unless otherwise ordered by the Board of
Directors, the President, or, in the event of his inability to act, the
Vice-President designated by the Board of Directors to act in the absence of the
President, shall have full power and authority on behalf of the corporation to
attend and to act and to vote at any meetings of security holders of
corporations in which the corporation may hold securities, and at such meetings
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities, and which as the owner thereof the corporation
might have possessed and exercised, if present. The Board of Directors by
resolution from time to time may confer like powers upon any other person or
persons.
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ARTICLE IV
INDEMNIFICATION
The corporation shall indemnify any person made, or threatened to be made,
a party to an action other than one by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he or his testator or
intestate is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of any other
corporation of any type or kind, domestic or foreign, of any partnership, joint
venture, trust, employee benefit plan or other enterprise, against amounts paid
in settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense or settlement of such
action, or in connection with an appeal therein if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or,
in the case of service for any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the corporation, except that no indemnification under this
paragraph shall be made in respect of (1) threatened action, or a pending action
which is settled or otherwise disposed of, or (2) any claim issue or matter as
to which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the court on which the action was brought,
or, if no action was brought, any court of competent jurisdiction, determines
upon application that, in view of all the circumstances of the case, the person
is fairly and reasonably entitled to indemnity for such portion of the
settlement amount and expenses as the court deems proper. The corporation shall
indemnify any person made, or threatened to be made, a party to an action or
proceeding other than one by or in the right of the corporation to procure a
judgment in its favor, whether civil or criminal, including an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other enterprise
which any director, or officer, of the corporation served in any capacity at the
request of the corporation, by reason of the fact that he or his testator or
intestate is or was a director or officer of the corporation, or served such
other corporation, or any partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity, against judgments, fines, amounts paid
in settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such director or officer acted, in good faith, for a purpose which
he reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to, the best interests of the corporation and, in
criminal actions or proceedings, in addition, had no reasonable cause to believe
that his conduct was unlawful. The foregoing right of indemnification shall not
be exclusive of other rights to which he may be entitled as set forth in the
General Corporation Law.
ARTICLE V
CERTIFICATES REPRESENTING SHARES
SECTION 1. FORM; TRANSFER; CONSIDERATION. The interest of each shareholder
of the corporation shall be evidenced by certificates representing shares in
such form not inconsistent with the Certificate of Incorporation as the Board of
Directors may from time to time prescribe. Certificates representing shares
shall have set forth thereon the statements prescribed by law and shall be
signed by the President or a Vice-President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the
corporate seal or a facsimile thereof. The signatures of the officers upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the corporation itself or its
employee or the shares are listed on a registered national security exchange. In
case any officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer before such certificate
is issued, it may be issued by the corporation with the same effect as if he
were such officer at the date of its issue.
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Upon compliance with provisions restricting the transferability of shares,
if any, transfer of shares of the corporation shall be made only on the share
record of the corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the corporation or with a transfer agent or a registrar, if any,
and upon the surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes due thereon.
A certificate representing shares shall not be issued until the full amount
of consideration therefor has been paid, except as the General Corporation Law
may otherwise permit.
SECTION 2. FRACTIONS OF SHARES. The corporation may issue certificates for
fractions of a share where necessary to effect transactions authorized by the
General Corporation Law which shall entitle the holder, in proportion to his
fractional holdings, to exercise voting rights, receive dividends and
participate in liquidating distributions; or it may pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined; or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a shareholder except as therein
provided.
SECTION 3. REPLACEMENT OF SHARES. No certificate representing shares shall
be issued in place of any certificate alleged to have been lost, destroyed or
stolen, except on production of such evidence of such loss, destruction or theft
as the Board of Directors may require, and on delivery to the corporation, if
the Board of Directors shall so require, of a bond of indemnity in such amount,
upon such terms and secured by such surety as the Board of Directors may in its
discretion require.
SECTION 4. GENERAL REGULATION. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates representing
shares of the corporation.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be determined by the Board of
Directors.
ARTICLE VII
CORPORATE SEAL
The Corporate seal shall have inscribed thereon the name of the corporation
and the year of its incorporation, and shall be in such form and contain such
other words and/or figures as the Board of Directors shall determine. The
corporate seal may be used by printing, engraving, lithographing, stamping or
otherwise making, placing or affixing, or causing to be printed, engraved,
lithographed, stamped or otherwise made, placed or affixed upon any paper or
document, by any process whatsoever, an impression, facsimile, or other
reproduction of said corporate seal.
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ARTICLE VIII
GENERAL
SECTION 1. FINANCIAL INFORMATION. The directors may appoint the Treasurer
or other fiscal officer and/or the Secretary or any other officer to cause to be
prepared and furnished to shareholders entitled thereto any special financial
notice and/or financial statement, as the case may be, which may be required by
any provision of law.
SECTION 2. BOOKS AND RECORDS. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of the shareholders, of the Board of Directors, and/or any committee which the
directors may appoint, and shall keep at the office of the corporation in the
State of Delaware or at the office of the transfer agent or registrar, if any,
in said state, or at such other office as may be determined by the Board of
Directors, a record containing the names and addresses of all shareholders, the
number and class of shares held by each, and the dates when they respectively
became the owners of record thereof. Any of the foregoing books, minutes, or
records may be in written form or in any other form capable of being converted
into written form within a reasonable time.
SECTION 3. ARTICLES AND SECTION HEADINGS IN BYLAWS. The article and section
headings in these By-Laws are used for the purpose of convenience only, and are
meant to have no effect whatsoever upon the interpretation of the By-Laws.
ARTICLE IX
REIMBURSEMENT OF CORPORATION
Any payments made to or on behalf of an officer of the Corporation such as
salary, commission, bonus, interest, rent, travel, entertainment or other
expense incurred by him, which shall be disallowed in whole or in part as a
deductible expense by the Internal Revenue Service, shall be reimbursed by such
officer to the Corporation to the extent of such disallowance. It shall be the
duty of the Directors as a Board to enforce payment of each such amount
disallowed. In lieu of payment by the officer, subject to the determination of
the Directors, proportionate amounts may be withheld from his future
compensation payments until the amount owed to the Corporation has been
recovered.
ARTICLE X
AMENDMENTS
The shareholders entitled to vote in the election of directors may amend or
repeal the By-Laws and may adopt new By-Laws. Except as otherwise required by
law or by the provisions of these By-Laws, the Board of Directors may also amend
or repeal the By-Laws and adopt new By-Laws, but By-Laws adopted by the Board of
Directors may be amended or repealed by the said shareholders.
Notwithstanding anything else in this Article X, Article II Section 1 of
these By-Laws shall not be amended without the consent of Jeffrey Bernstein,
provided that Jeffrey Bernstein: (i) has maintained a ten percent (10%) interest
in the outstanding capital stock of the Corporation on a fully diluted basis; or
(ii) has maintained employment with the Corporation.
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