Form 10-Q/A
Amendment No. 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
[x] Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Quarter Ended September 30, 1995
[ ] Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Commission File Number - 0-12321
ANUHCO, INC.
State of Incorporation - Delaware
IRS Employer Identification No. - 46-0278762
9393 West 110th Street, Suite 100
Overland Park, Kansas 66210
Telephone Number - (913) 451-2800
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes x . No .
Indicate the number of shares outstanding of each of the issuer's
classes of common stock.
Anuhco, Inc.
Common Stock, $0.01 par value
7,139,970 shares outstanding
as of November 8, 1995
Form 10-Q/A
Contains 2 pages
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PART II - OTHER INFORMATION
(a) Exhibits
3(b) Restated By Laws of Anuhco, Inc., as adopted
August 29, 1995.
(b) Reports on Form 8-K None
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Anuhco, Inc.
Registrant
By: /s/ Timothy P. O'Neil
Timothy P. O'Neil, President
and Chief Financial Officer
Date: December 12, 1995
EXHIBIT INDEX
Assigned
Exhibit
Number Description of Exhibit
3(b) Restated By Laws of Anuhco, Inc., as adopted
August 29, 1995.
</PAGE>
ANUHCO, INC.
RESTATED BYLAWS
As Adopted August 29, 1995
</PAGE>
RESTATED BY LAWS
OF
ANUHCO, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be located at such place in the State of Delaware
as the Board of Directors may from time to time authorize by duly
adopted resolution.
Section 2. Other Offices. The Corporation may also have offices
at such other places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meetings. An annual meeting of the stockholders
of the Corporation for the election of directors and the
transaction of such other business as may properly come before such
meeting shall be held on such date and at such time as the Board of
Directors shall specify, as set forth in such notice thereof.
Section 2. Special Meetings. Special meetings of the stockholders
may be called only by the Board of Directors.
Section 3. Place of Meeting. Meetings of the stockholders may be
held at any place within or without the State of Delaware as shall
be designated from time to time by the Board of Directors and
specified in the notice of meeting or a waiver of notice thereof.
Section 4. List of Stockholders. At least ten (10) days before
every meeting of stockholders, the Secretary shall prepare a
complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) 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 meeting
or, if not so specified, at the place where the meeting is to be
held. Such list shall also be produced and kept open at the time
and place of the meeting and shall be subject to inspection by any
stockholder during the whole time of the meeting.
Section 5. Notice. Written notice of each meeting of stockholders
stating the place, day and hour of the meeting and, in case of a
special meeting, the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) days nor more than
sixty (60) days before the date of the meeting, either personally
or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, notice of a stockholders' meeting shall be
deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 6. Waiver of Notice. Whenever notice is required to be
given under any provision of the General Corporation Law of
Delaware, the Certificate of Incorporation or these By-Laws, a
written waiver thereof, signed by the stockholder entitled to
notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Neither the business to be transacted
at, nor the purpose of any annual or special meeting of the
stockholders need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation or these By-
Laws. Attendance of a stockholder at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when
the stockholder attends such meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened.
Section 7. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, at all meetings of the stockholders
of this Corporation, the holders of a majority of the outstanding
shares entitled to vote thereat present in person or by proxy shall
constitute a quorum. If a quorum is not present or represented at
such meeting, the affirmative vote of a majority of shares
represented at any meeting, in person or by proxy, may adjourn any
meeting of stockholders until a quorum is present. In all matters
other than the election of directors, every decision of a majority
of shares of stock entitled to vote on the subject matter and
represented in person or by proxy at a meeting at which a quorum is
present shall be valid as an act of the shareholders unless a
larger vote is required by the Certificate of Incorporation, these
By-Laws or the laws of the State of Delaware then in effect.
Directors shall be elected by a plurality of the votes of the
shares present in person or by proxy at the meeting and entitled to
vote on the election of directors.
Section 8. Adjourned Meetings. Any stockholders' meeting may be
adjourned from time to time until its business is completed, and
notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment
is taken; provided, however, that if the adjournment is for more
than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote thereat. At any adjourned meeting the Corporation may
transact any business which might have been transacted at the
original meeting.
Section 9. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize another
person or persons to act for him by proxy, but no such proxy shall
be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period, and then only within the
period specified.
Section 10. Elections of Directors. All elections of directors
shall be by written ballot.
Section 11. Action by Consent. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at
any annual or special meeting of stockholders of the Corporation,
or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders
of outstanding stock 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. The secretary shall file such consents with the minutes
of the meetings of the stockholders.
Section 12. Inspectors of Election. The Board of Directors, the
Chairman of the Board or the President shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof, and may designate
one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able
to act at a meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting.
Each inspector before entering upon the discharge of such
inspector's 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. At the meeting, the
inspector or inspectors shall: (a) ascertain the number of shares
outstanding and the voting power of each, (b) determine the shares
represented at the meeting and the validity of proxies and ballots,
(c) count all votes and ballots, (d) determine and retain for a
reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and (e) certify the
determination of the number of shares represented at the meeting,
and the count of all votes and ballots. The inspectors may appoint
or retain other persons or entities to assist them in the
performance of their duties. The date and time of the opening and
the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor any revocations thereof
or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Delaware Court of Chancery, or any
other court having jurisdiction of the matter, upon application by
a stockholder shall determine otherwise.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Power and Authority. The property, business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. The Board of Directors may
exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute, or by the Certificate of
Incorporation, or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 2. Number and Term. The number of directors which shall
constitute the Board of Directors shall be determined from time to
time by resolution of the Board of Directors, provided that the
total number of directors shall not be less than six (6) or more
than twelve (12) director(s); and provided further that no
reduction by the Board of Directors in the number of directors
shall affect the term of any incumbent director. The directors
shall be elected at the annual meeting of stockholders, except as
provided herein. Each director so elected shall hold office until
the next succeeding annual meeting of stockholders and until his
successor is duly elected and qualified, or until his earlier
death, resignation or removal.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director; or
any such vacancies or newly created directorships may be filled by
the stockholders at any meeting. Any directors so chosen to fill
such vacancies or newly created directorships shall hold office
until the next election of directors and until their successors are
elected and qualified, or until their earlier death, resignation or
removal.
Section 4. Meetings. The first meeting of each newly elected
Board, for which no notice shall be necessary, shall be held
immediately following each annual meeting of the stockholders of
the Corporation or any adjournment thereof, at the place of such
annual meeting, or at such place and time as a majority of the
members of the newly elected Board who are then present shall
determine. All other meetings of the Board of Directors may be
held within or without the State of Delaware as may be provided in
the resolution or notice calling such meeting. Regular meetings of
the Board of Directors shall be held at such times as the Board of
Directors may from time to time provide and without any notice
other than the resolution or action providing therefor. Special
meetings of the Board of Directors shall be held at any time upon
the call of the Chairman of the Board or by the Chairman of the
Board or the Corporate Secretary upon the written request of any
two (2) members of the Board.
Section 5. Notice Of Special and Committee Meetings. Notice of
all special meetings of the Board of Directors shall be given to
each director, which notice shall state the time and place of each
meeting. Such notice need not include a statement of the business
to be transacted at, or the purpose of, any such meeting. Like
notice of all meetings of the committees of the Board of Directors
shall be given to each member of the appropriate committee. Such
notice shall be mailed, postage prepaid, at least five (5) days
before such meeting, addressed to the last known residence or place
of business of each director or, at least twenty-four (24) hours
before such meeting, shall be sent to him or her at such place by
telegraph, cable, telecopier or similar means or personally served
on him or her in person or by telephone.
Section 6. Waiver of Notice. A written waiver of notice, signed
by the director entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of any
annual or special meeting need be specified in any written waiver
of notice unless so required by the Certificate of Incorporation or
these By-Laws. Attendance of a director at any meeting, whether
regular or special, shall constitute a waiver of notice of such
meeting except where a director attends a meeting for the express
purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully
called or convened.
Section 7. Quorum. A majority of the directors then in office
(but in no event less than one-third of the total number of
directors authorized by the Board pursuant to Article III, Section
2) shall constitute a quorum for the transaction of business, and
the act of a majority of the directors present at a meeting at
which a quorum shall be present shall be an act of the Board of
Directors except as may be otherwise specifically required by law
or the Certificate of Incorporation or these By-Laws; and if less
than a quorum may be present at any meeting, those present may
adjourn from time to time to another time and place until a quorum
shall be present, without notice other than announcement at the
meeting of such other time and place.
Section 8. Telephone Meeting. Members of the Board of Directors
or any committee designated by the Board of Directors may
participate in meetings by means of conference telephone or similar
communications equipment whereby all participants can hear each
other and such participation shall constitute presence in person at
the meeting.
Section 9. Committees of Directors Designated by Board. The Board
of Directors may by resolution or resolutions adopted by a majority
of the whole Board of Directors designate two or more directors to
constitute an executive committee, audit committee, compensation
committee, nominating committee, or such other committee or
committees as the Board of Directors may from time to time deem
advisable. Except to the extent restricted by law, any said
committee shall have and may exercise all of the authority of the
Board of Directors in the management of the Corporation to the
extent provided in said resolutions and may have power to authorize
the seal of the Corporation to be affixed to all papers which may
require it. The committees shall keep regular minutes of their
proceedings and report the same to the Board when required. The
Board 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 a committee, the member or members present at any
meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. All committees
shall keep minutes of their proceedings and report the same to the
Board of Directors when required.
Section 10. Committees of Directors Designated by Chairman. The
Chairman of the Board of Directors may designate such advisory
committees from time to time as the Chairman of the Board of
Directors deems necessary and proper, to perform such duties as may
be determined by such chairman at the time of their designation or
as may be modified thereafter by such chairman; provided, however,
that any such advisory committee or committees shall have and may
exercise only the power to recommend action to the Board of
Directors. Each advisory committee shall consist of two or more
individuals (with such alternates, if any, as may be deemed
desirable) selected by the Chairman of the Board of Directors, who
may but need not be members of the Board of Directors.
Section 11. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation, any action which is required or
permitted to be taken at a meeting of the directors or of any
committee thereof may be taken without a meeting if consents in
writing, setting forth the action so taken, are signed by all
members of the Board or of the committee, as the case may be. Such
consents shall have the same force and effect as a unanimous vote
at a meeting duly held. The Secretary shall file such consents
with the minutes of the meetings of the Board of Directors or the
committee, as the case may be.
Section 12. Compensation of Directors. Unless otherwise
restricted by law or by the Certificate of Incorporation,
directors, as such, shall receive such compensation, if any, for
their services as the Board shall, from time to time, determine;
provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 13. Chairman of the Board. The Chairman of the Board of
Directors, if any, shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors, may
sign certificates for shares of the Corporation and shall perform
such other duties and have such other responsibilities as may, from
time to time, be determined by the Board of Directors.
Section 14. Vice-Chairman of the Board. The Vice-Chairman of the
Board of Directors, if any, shall exercise and perform such powers
and duties as may be from time to time assigned to him by the Board
of Directors or the Chairman of the Board. In the absence of the
Chairman of the Board, the Vice-Chairman of the Board shall preside
at all meetings of the stockholders and the Board of Directors.
Section 15. Removal of Directors. At a meeting called expressly
for that purpose, the entire Board of Directors or any member
thereof may be removed, with or without cause, by the vote of the
holders of a majority of the shares then entitled to vote at an
election of directors.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of this Corporation shall be
elected by the Board of Directors and shall consist of a President
and a Secretary and such other or additional officers (including,
without limitation, one or more Vice Presidents, a Treasurer, a
Controller, and one or more Assistant Treasurers, Assistant
Secretaries or Assistant Controllers) as the Board of Directors may
designate. Unless otherwise restricted by law, the Certificate of
Incorporation or these By-Laws, any two or more offices, except
those of President and Vice-President,may be held by one and the
same person.
Section 2. Qualifications. The officers need not be members of
the Board of Directors and they need not be residents of the State
of Delaware.
Section 3. Election of Officers. Officers shall be elected by the
Board at its first meeting after the election of directors at the
annual meeting of stockholders and at such other times as deemed
appropriate or necessary by the Board. All officers shall serve at
the will of the Board or until their successors are elected and may
be removed either with or without cause by the Board of Directors.
Section 4. Compensation. The compensation of all officers of the
Corporation shall be fixed by or in the manner prescribed by the
Board of Directors.
Section 5. Expense Reimbursement. The Corporation may adopt,
from time to time, a policy with respect to reimbursement of
expenses incurred on behalf of the Corporation by its officers
and/or employees. Reimbursement of such expenses shall be in
accordance with the requirements imposed by the Internal Revenue
Code for substantiation of such expenses as deductible business
expenses to the Corporation. Should the expenses paid by any
officer or employee exceed the amount determined by the Corporation
to be the maximum amount reimbursed by the Corporation, it shall be
the policy of this Corporation to encourage the officer or employee
of the Corporation to incur said expense without reimbursement if
the officer or employee deems the expense to be in the best
interests of the Corporation.
ARTICLE V
DUTIES OF OFFICERS
Section 1. President. The President, in the absence of the
Chairman of the Board and the Vice-Chairman of the Board, shall
preside at all meetings of the stockholders and all meetings of the
Board of Directors; the President may sign certificates for shares
of the Corporation. Subject to the direction of the Board of
Directors, the President shall have and exercise direct charge of
and general supervision over the business and affairs of the
Corporation, and he shall perform such other duties as may be
delegated to him by the Board of Directors, the Chairman of the
Board and Vice- Chairman of the Board. The President may sign all
notes, agreements or other instruments in writing made and entered
into for or on behalf of the Corporation, except in cases where the
signing thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise signed or
executed; and in general the President shall perform all duties
incident to the office of President.
Section 2. Vice Presidents. The Vice Presidents, if any, in the
order designated by the Board of Directors, shall exercise the
functions of the President during the absence or disability of the
President. Each Vice President shall have such powers and
designated titles, if any, and discharge such duties as may be
assigned by the Board of Directors, and shall perform such other
duties as may be delegated by the President.
Section 3. Corporate Secretary. The Corporate Secretary shall
attend all meetings of the Board of Directors and all meetings of
the stockholders, record all the proceedings of the meetings of the
Corporation and of the Board of Directors in a book to be kept for
that purpose and perform like duties for the standing committees
when required. The Corporate Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and of special
meetings of the Board of Directors and shall perform such other
duties as are usually incident to the office of the secretary of a
Corporation, as may be prescribed by the Board of Directors or
President. The Corporate Secretary shall keep in safe custody the
seal of the Corporation and affix the same to any instrument
requiring it and, when so affixed, it shall be attested by his or
her signature.
Section 4. Assistant Secretaries. The Assistant Secretary or, if
there be more than one (1), the Assistant Secretaries shall, in the
absence or disability of the Corporate Secretary, perform the
duties and exercise the powers of the Corporate Secretary and shall
perform such other duties as may be assigned by the President.
Section 5. Treasurer. The Treasurer, if any, shall have the
custody of all moneys and securities of the Corporation and shall
keep regular books of account. The Treasurer shall disburse the
funds of the Corporation in payment of the just demands against the
Corporation, taking vouchers for such disbursements, and shall
render to the President and the Board of Directors, from time to
time, as may be required, an account of all transactions as
Treasurer and of the financial condition of the Corporation and
shall perform such other duties as may be required by the Board of
Directors or the President.
Section 6. Assistant Treasurers. The Assistant Treasurers, in the
order of their seniority, shall, in the absence or disability of
the Treasurer, perform the duties and exercise the powers of the
Treasurer, and such other duties as may be required by the
President.
ARTICLE VI
STOCK CERTIFICATES AND RECORD DATES
Section 1. Stock Certificates. Certificates representing shares
of the Corporation shall be in such form as may be determined by
the Board of Directors. Such certificates shall be signed by the
Chairman of the Board of Directors or Vice Chairman of the Board,
if any, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Any or all of the signatures on a 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 or she were such
officer, transfer agent or registrar at the date of issue.
Section 2. Lost Certificates. The Board of Directors may
authorize the issuance of a new certificate or certificates of
stock in place of any certificate theretofore issued by the
Corporation and alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming
that the certificate of stock has been lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates,
the Corporation may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his or her legal
representative, to give the Corporation a bond in such sum as it
may direct sufficient to indemnify it against any claim that may be
made against the Corporation on account of the alleged loss, theft
or destruction of any such certificate or the issuance of such new
certificate.
Section 3. Transfer of Stock. The shares of stock of the
Corporation shall be transferable only upon its books by the
registered holders thereof in person or by their duly authorized
attorneys or legal representatives, upon surrender and cancellation
of certificates for a like or greater number of shares, with an
assignment or power of transfer endorsed thereon or delivered
therewith, duly executed, and with such proof of the authenticity
of the signature and of authority to transfer, and of payment of
transfer taxes, as the Corporation or its agents may require.
Except as otherwise expressly provided by the statutes of the State
of Delaware, the Corporation shall be entitled to treat the holder
of record of any share or shares of stock 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 share or shares on the part of any other person whether or not
it shall have express or other notice thereof.
Section 4. Fixing the Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, 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
in advance a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of statute and
the Certificate of Incorporation, dividends upon the shares of
capital stock of the Corporation may be declared by the Board of
Directors at any regular or special meting. Dividends may be paid
in cash, in property or in shares of capital stock of the
Corporation, unless otherwise provided by statute or the
Certificate of Incorporation.
Section 2. Reserves. 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 may from time
to time, in its 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 of Directors may think conducive to
the interests of the Corporation. The Board of Directors may
modify or abolish any such reserves in the manner in which they
were created.
Section 3. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its
organization, and the words "Corporate Seal, Delaware". Said seal
may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 4. Fiscal Year. The fiscal year of the Corporation shall
end on the last day of December of each year, unless and until the
same shall be modified by resolution of the Board of Directors.
Section 5. Checks, Notes, Drafts, etc. All checks, notes, drafts
or other orders for the payment of money of the Corporation may be
signed, endorsed or accepted in the name of the Corporation by such
officer, officers, person or persons as from time to time may be
designated by the Board of Directors or any officer or officers
authorized by the Board of Directors to make such designations.
Section 6. Execution of Contracts, Deeds, etc. The Board of
Directors may authorize any director or directors, officer or
officers, agent or agents, to enter into or execute and deliver in
the name and on behalf of the Corporation any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such
authority may be general or confined to specific instances.
Section 7. Voting of Stock in Other Corporations. Unless
otherwise provided by resolution of the Board of Directors, the
President from time to time may (or may appoint one or more
attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a stockholder or otherwise in any other
Corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other
securities of such other Corporation. If one or more attorneys or
agents are appointed, the President may instruct the person or
persons so appointed as to the manner of casting such votes or
giving such consent. The President may, or may instruct the
attorneys or agents appointed to, execute or cause to be executed
in the name and on behalf of the Corporation and under its seal or
otherwise, such written proxies, consents, waivers, or other
instruments as may be necessary or proper in the circumstances.
ARTICLE VIII
INDEMNIFICATION
Section 1. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by
or in the right of the Corporation) by reason of the fact that he
is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee, or agent of another Corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere, or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
Section 2. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending, or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee, or agent of another Corporation, partnership,
joint venture, trust, or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation and
except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to the
extent that a court shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 3. Notwithstanding the provisions of Sections 1 and 2 of
this Article VIII, to the extent that any person specified in
Sections 1 or 2 has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections
1 or 2, or in defense of any claim, issue or matter therein, such
person shall be indemnified by the Corporation against all expenses
(including attorneys' fees), actually or reasonably incurred by
such person in connection therewith.
Section 4. Reasonable expenses (including attorneys' fees)
incurred by any person specified in Sections 1 and 2 of this
Article VIII in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt by the Corporation of any
undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation as provided in this Article
VIII.
Section 5. The indemnification provided by this Article shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent
and shall inure to the benefit of the heirs, executors, and
administrators of such person.
Section 6. All rights provided any person by this Article VIII
shall be contract rights. No amendment, alteration, addition,
change or repeal of this Article VIII, or any other provisions of
the Certificate of Incorporation or of the By-Laws shall in any way
impair or reduce the rights to indemnification or advancement of
expenses provided by this Article VIII to such person with respect
to any acts or omissions of such person occurring prior to the time
of such amendment, alteration, addition, change or repeal.
Section 7. Notwithstanding the provisions of Sections 1, 2 and 4
of this Article VIII, if the Delaware General Corporation Law is
amended to permit greater rights to indemnification or advancement
of expenses than that provided in this Article VIII, then the
persons specified in Sections 1, 2 or 4 shall be granted such
greater rights to the full extent permitted by the Delaware General
Corporation Law as so amended.
Section 8. In the event that any part of the Article VIII shall be
found in any action, suit or proceeding to be invalid or
ineffective, the validity and the effect of the remaining parts
shall not be affected and the Corporation shall indemnify the
persons specified in Sections 1 and 2 to the full extent required
by the remaining parts of this Article VIII and to the full extent
permitted by the Delaware General Corporation Law.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. The Board of Directors shall have the
power to make, alter or repeal the By-Laws of the Corporation
subject to the power of the stockholders to alter or repeal the By-
Laws made or altered by the Board of Directors.
/s/ Barbara J. Wackly
Corporate Secretary
