UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 15, 1997
SYRATECH CORPORATION
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(Exact name of registrant as specified in its charter)
State of Delaware 1-12624 13-3354944
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(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation)
175 McClellan Highway, East Boston, Massachusetts 02128-9114
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (617) 561-2200
Not applicable
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
-------------
In connection with the Registration Statement on Form S-3 (File No.
333-18133) filed by Syratech Corporation, a Delaware corporation (the
"Company"), and several guarantors (the "Guarantors"), with the Securities and
Exchange Commission (the "SEC") on December 18, 1996, as amended by Amendment
No. 1 to the Registration Statement filed with the SEC on March 18, 1997 and
declared effective by the SEC on April 10, 1997 and the Registration Statement
on Form S-3 (File No. 333-24965) filed by the Company and the Guarantors with
the SEC on April 11, 1997, pursuant to the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, the Company and the
Guarantors incurred the following expenses, other than underwriting discounts
and commissions, payable by the Company and the Guarantors in connection with
the sale of the 11% Senior Notes due 2007 and the Subsidiary Guarantees being
registered thereby. All items are estimated except the registration, filing and
listing fees.
SEC registration fee........................................ $ 51,516
Blue sky fees and expenses.................................. 15,000
Printing and engraving expenses............................. 200,000
Legal fees and expenses..................................... 150,000
Accounting fees and expenses................................ 100,000
Trustee fees................................................ 20,000
Miscellaneous............................................... 13,484
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Total....................................................... $550,000
<PAGE>
Item 7. Exhibits
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Exhibit Number
(Referenced to Item 601
of Regulation S-K) Description of Exhibit
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<TABLE>
<CAPTION>
<S> <C>
3.6 Articles of Incorporation of Syratech Holding Corporation.
3.7 Bylaws of Syratech Holding Corporation.
3.8 Certificate of Incorporation of New Wallace Corporation.
3.9 Certificate of Amendment of New Wallace Corporation.
3.10 Certificate of Amendment of Wallace International Silversmiths, Inc.
3.11 Bylaws of Wallace International Silversmiths, Inc.
3.12 Certificate of Incorporation of Wallace International de P.R., Inc.
3.13 Certificate of Renewal of Wallace International de P.R., Inc.
3.14 Certificate of Amendment of Wallace International de P.R., Inc.
3.15 Bylaws of Wallace International de P.R., Inc.
3.16 Certificate of Incorporation of International Silver Company.
3.17 Bylaws of International Silver Company.
3.18 Certificate of Incorporation of International Silver de P.R., Inc.
3.19 Bylaws of International Silver de P.R., Inc.
3.20 Certificate of Incorporation of PMW de P.R., Inc.
3.21 Certificate of Amendment Before Receipt of Payment for Stock of PMW de P.R., Inc.
3.22 Certificate of Amendment of PMW Silver de P.R., Inc.
3.23 Bylaws of PMW Silver de P.R., Inc.
3.24 Certificate of Incorporation of Newburyport Acquisition Corp.
3.25 Certificate of Amendment of Newburyport Acquisition Corp.
3.26 Bylaws of Towle Manufacturing Company
3.27 Certificate of Incorporation of Ramesor, Inc.
3.28 Certificate of Amendment Before Payment for Stock of Ramesor, Inc.
3.29 Bylaws of Rosemar Silver Company, Inc.
3.30 Certificate of Incorporation of Port Property Holdings, Inc.
3.31 Certificate of Amendment Before Payment for Stock of Port Property Holdings, Inc.
3.32 Bylaws of Towle Holloware, Inc.
3.33 Certificate of Incorporation of HRID29, Inc.
3.34 Certificate of Incorporation of Far-B Acquisition Corp.
3.35 Certificate of Amendment of Farberware Inc.
3.36 Certificate of Amendment of Far-B Acquisition Corp.
3.37 Bylaws of Farberware Inc.
3.38 Certificate of Incorporation of Silvestri Acquisition Corporation.
3.39 Certificate of Amendment of Silvestri Corporation.
3.40 Bylaws of Silvestri, Inc.
3.41 Certificate of Incorporation of Rochard Imports, Incorporated.
3.42 Certificate of Amendment of Rochard Imports, Incorporated.
3.43 Certificate of Incorporation of Rochard Imports, Incorporated.
3.44 Articles of Incorporation of Northstar Sales Corporation.
3.45 Bylaws of Northstar Sales Corporation.
3.46 Articles of Organization of Leonard Florence Associates, Inc.
3.47 Bylaws of Leonard Florence Associates, Inc.
3.48 Articles of Incorporation of CHI International, Inc.
3.49 Bylaws of CHI International, Inc.
3.50 Articles of Organization of Syratech Security Corporation.
3.51 Articles of Amendment of Syratech Security Corporation.
3.52 Bylaws of Syratech Security Corporation.
3.53 Articles of Incorporation of Syratech West Coast Warehouse Corp.
3.54 Bylaws of Syratech West Coast Warehouse Corp.
3.55 Declaration of Trust of 175 Amlegion Realty Trust.
3.56 Articles of Incorporation of Syratech Silver Sales Corp.
3.57 Bylaws of Syratech Silver Sales Corp.
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
</TABLE>
<PAGE>
Signatures
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Company has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: April 15, 1997
SYRATECH CORPORATION
By: /s/ Faye A. Florence
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Name: Faye A. Florence
Title: Vice President
<PAGE>
EXHIBIT INDEX
Pursuant to Item 601 of Regulation S-K
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<CAPTION>
Pagination
by
Exhibit Exhibit sequential
Number Description numbering
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<S> <C> <C>
3.6 Articles of Incorporation of Syratech Holding Corporation.
3.7 Bylaws of Syratech Holding Corporation.
3.8 Certificate of Incorporation of New Wallace Corporation.
3.9 Certificate of Amendment of New Wallace Corporation.
3.10 Certificate of Amendment of Wallace International Silversmiths, Inc.
3.11 Bylaws of Wallace International Silversmiths, Inc.
3.12 Certificate of Incorporation of Wallace International de P.R., Inc.
3.13 Certificate of Renewal of Wallace International de P.R., Inc.
3.14 Certificate of Amendment of Wallace International de P.R., Inc.
3.15 Bylaws of Wallace International de P.R., Inc.
3.16 Certificate of Incorporation of International Silver Company.
3.17 Bylaws of International Silver Company.
3.18 Certificate of Incorporation of International Silver de P.R., Inc.
3.19 Bylaws of International Silver de P.R., Inc.
3.20 Certificate of Incorporation of PMW de P.R., Inc.
3.21 Certificate of Amendment Before Receipt of Payment for Stock of PMW de P.R., Inc.
3.22 Certificate of Amendment of PMW Silver de P.R., Inc.
3.23 Bylaws of PMW Silver de P.R., Inc.
3.24 Certificate of Incorporation of Newburyport Acquisition Corp.
3.25 Certificate of Amendment of Newburyport Acquisition Corp.
3.26 Bylaws of Towle Manufacturing Company
3.27 Certificate of Incorporation of Ramesor, Inc.
3.28 Certificate of Amendment Before Payment for Stock of Ramesor, Inc.
3.29 Bylaws of Rosemar Silver Company, Inc.
3.30 Certificate of Incorporation of Port Property Holdings, Inc.
3.31 Certificate of Amendment Before Payment for Stock of Port Property Holdings, Inc.
3.32 Bylaws of Towle Holloware, Inc.
3.33 Certificate of Incorporation of HRID29, Inc.
3.34 Certificate of Incorporation of Far-B Acquisition Corp.
3.35 Certificate of Amendment of Farberware Inc.
3.36 Certificate of Amendment of Far-B Acquisition Corp.
3.37 Bylaws of Farberware Inc.
3.38 Certificate of Incorporation of Silvestri Acquisition Corporation.
3.39 Certificate of Amendment of Silvestri Corporation.
3.40 Bylaws of Silvestri, Inc.
3.41 Certificate of Incorporation of Rochard Imports, Incorporated.
3.42 Certificate of Amendment of Rochard Imports, Incorporated.
3.43 Certificate of Incorporation of Rochard Imports, Incorporated.
3.44 Articles of Incorporation of Northstar Sales Corporation.
3.45 Bylaws of Northstar Sales Corporation.
3.46 Articles of Organization of Leonard Florence Associates, Inc.
3.47 Bylaws of Leonard Florence Associates, Inc.
3.48 Articles of Incorporation of CHI International, Inc.
3.49 Bylaws of CHI International, Inc.
3.50 Articles of Organization of Syratech Security Corporation.
3.51 Articles of Amendment of Syratech Security Corporation.
3.52 Bylaws of Syratech Security Corporation.
3.53 Articles of Incorporation of Syratech West Coast Warehouse Corp.
3.54 Bylaws of Syratech West Coast Warehouse Corp.
3.55 Declaration of Trust of 175 Amlegion Realty Trust.
3.56 Articles of Incorporation of Syratech Silver Sales Corp.
3.57 Bylaws of Syratech Silver Sales Corp.
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison.
</TABLE>
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STATE OF ARKANSAS
[STATE INSIGNIA]
SECRETARY OF STATE
W.J. "Bill" McCuen
Secretary of State
To All to Whom These Presents Shall Come, Greetings:
J. Bill McCuen, Secretary of State of the State of Arkansas, do hereby
certify that the following and hereto attached instrument of writing is a true
and perfect copy of
ARTICLES OF INCORPORATION
OF
SYRATECH HOLDING CORPORATION
ORIGINAL ARTICLES FILED:
DECEMBER 27, 1993
[SEAL] In Testimony Whereof, I have hereunto set my hand and
affixed my official Seal. Done at office in the City of
Little Rock, this 27th day of DECEMBER 1993
/s/ Bill McCuen
------------------------------------
Secretary of State
================================================================================
<PAGE>
ARTICLES OF INCORPORATION
-------------------------
OF
SYRATECH HOLDING CORPORATION
The undersigned, an individual, does hereby act as incorporator in
adopting the following Articles of Incorporation for the purpose of organizing a
corporation for profit, pursuant to the provisions of the Arkansas Business
Corporation Act.
FIRST: The corporate name for the corporation (hereinafter called the
"corporation") is
SYRATECH HOLDING CORPORATION
SECOND: The number of shares the corporation is authorized to issue is
One Thousand (1,000), all of which are of a par value of One Dollar ($1.00) each
and are of the same class and are to be Common Shares.
THIRD: The street address of the initial registered office of the
corporation in the State of Arkansas is One Riverfront Place, 8th Floor, North
Little Rock, Arkansas 72114.
The name of the initial registered agent of the corporation at the
said registered office is The Prentice-Hall Corporation System, Arkansas.
<PAGE>
2
FOURTH: The name and the address of the incorporator are:
NAME ADDRESS
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James L. Purcell 1285 Avenue of the Americas
New York, New York 10019-6064
FIFTH: The primary purposes for which the corporation is organized,
which shall include the authority of the corporation to engage in any lawful
business, are as follows:
To hold the shares of capital stock of certain operating and other
subsidiaries of Syratech Corporation, a Delaware corporation.
To carry on a general mercantile, industrial, investing, and trading
business in all its branches; to devise, invent, manufacture, fabricate,
assemble, install, service, maintain, alter, buy, sell, import, export,
license as licensor or licensee, lease as lessor or lessee, distribute,
job, enter into, negotiate, execute, acquire, and assign contracts in
respect of, acquire, receive, grant, and assign licensing arrangements,
options, franchises, and other rights in respect of, and generally deal in
and with, at wholesale and retail, as principal, and as sales, business,
special, or general agent, representative, broker, factor, merchant,
distributor, jobber, advisor, and in any other lawful capacity, goods,
wares,
<PAGE>
3
merchandise, commodities, and unimproved, improved, finished, processed,
and other real, personal, and mixed property of any and all kinds, together
with the components, resultants, and by-products thereof; to acquire by
purchase or otherwise own, hold, lease, mortgage, sell, or otherwise
dispose of, erect, construct, make, alter, enlarge, improve, and to aid or
subscribe toward the construction, acquisition, or improvement of any
factories, shops, storehouses, buildings, and commercial and retail
establishments of every character, including all equipment, fixtures,
machinery, implements, and supplies necessary, or incidental to, or
connected with, any of the purposes or business of the corporation; and
generally to perform any and all acts connected therewith or arising
therefrom or incidental thereto, and all acts proper or necessary for the
purpose of the business.
To engage generally in the real estate business as principal, agent,
broker, and in any lawful capacity, and generally to take, lease, purchase,
or otherwise acquire, and to own, use, hold, sell, convey, exchange, lease,
mortgage, work, clear, improve, develop, divide, and otherwise handle,
manage, operate, deal in, and dispose of real estate, real property, lands,
multiple-dwelling structures, houses, buildings, and other works and any
interest or right therein; to take, lease,
<PAGE>
4
purchase, or otherwise acquire, and to own, use, hold, sell, convey,
exchange, hire, lease, pledge, mortgage, and otherwise handle, and deal in
and dispose of, as principal, agent, broker, and in any lawful capacity,
such personal property, chattels, chattels real, rights, easements,
privileges, choses in action, notes, bonds, mortgages, and securities as
may lawfully be acquired, held, or disposed of; and to acquire, purchase,
sell, assign, transfer, dispose of, and generally deal in and with, as
principal, agent, broker, and in any lawful capacity, mortgages and other
interests in real, personal, and mixed properties; to carry on a general
construction, contracting, building, and realty management business as
principal, agent, representative, contractor, subcontractor, and in any
other lawful capacity.
To apply for, register, obtain, purchase, lease, take licenses in
respect of, or otherwise acquire, and to hold, own, use, operate, develop,
enjoy, turn to account, grant licenses and immunities in respect of,
manufacture under and to introduce, sell, assign, mortgage, pledge, or
otherwise dispose of, and, in any manner deal with and contract with
reference to:
(a) inventions, devices, formulae, processes, and any
improvements and modifications thereof;
<PAGE>
5
(b) letters patent, patent rights, patented processes,
copyrights, designs, and similar rights, trade-marks, trade symbols,
and other indications of origin and ownership granted by or recognized
under the laws of the United States of America or of any state or
subdivision thereof, or of any foreign country or subdivision thereof,
and all rights connected therewith or appertaining thereunto;
(c) franchises, licenses, grants, and concessions.
To have all of the general powers granted to corporations organized
under the laws of the State of Arkansas whether granted by specific
statutory authority or by construction of law.
The foregoing clauses shall be construed as powers as well as
purposes. The enumeration herein of specific purposes and powers shall not be
held to limit or restrict in any way the general purposes and powers of the
corporation. The matters specified in any clause shall, except where otherwise
expressed, be in no wise limited or restricted by reference to or inference from
the terms of any other clause of this or any other Article of these Articles of
Incorporation, but the purposes and powers
<PAGE>
6
specified in each of the clauses of this Article shall be regarded as
independent purposes and powers.
SIXTH: No holder of any of the shares of any class of the corporation
shall be entitled as of right to subscribe for, purchase, or otherwise acquire
any shares of any class of the corporation which the corporation proposes to
issue or any rights or options which the corporation proposes to grant for the
purchase of shares of any class of the corporation or for the purchase of any
shares, bonds, securities, or obligations of the corporation which are
convertible into or exchangeable for, or which carry any rights to subscribe
for, purchase, or otherwise acquire shares of any class of the corporation; and
any and all of such shares, bonds, securities, or obligations of the
corporation; whether now or hereafter authorized or created, may be issued, or
may be reissued if the same have been reacquired and if their reissue is not
prohibited, and any and all of such rights and options may be granted by the
Board of Directors to such individuals and entities, and for such lawful
consideration, and on such terms, as the Board of Directors in its discretion
may determine, without first offering the same, or any thereof, to any said
holder.
SEVENTH: The personal liability of the directors of the corporation is
eliminated to the fullest extent permitted by the provisions of the Arkansas
Business
<PAGE>
7
Corporation Act, as the same may be amended and supplemented.
EIGHTH: The corporation shall, to the fullest extent permitted by the
provisions of the Arkansas Business Corporation Act, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said provisions from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said provisions, and
the indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any Bylaw, vote of
shareholders 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 a person.
NINTH: The duration of the corporation shall be perpetual.
Signed on December 22, 1993.
/s/ James L. Purcell
------------------------------
James L. Purcell, Incorporator
BYLAWS
------
OF
SYRATECH HOLDING CORPORATION
(an Arkansas corporation)
-----------------
ARTICLE I
SHAREHOLDERS
1. SHARE CERTIFICATES. Certificates evidencing shares of the
corporation shall set forth thereon the statements prescribed by Section
4-27-625 of the Arkansas Business Corporation Act ("Business Corporation Act")
and by any other applicable provision of law, shall be signed, either manually
or in facsimile, by at least two officers designated by the Board of Directors,
and must bear the corporate seal or its facsimile. If a person who signed,
either manually or in facsimile, a share certificate no longer holds office when
the certificate is issued, the certificate is nevertheless valid.
2. FRACTIONAL SHARES OR SCRIP. The corporation may: issue fractions of
a share or pay in money the value of fractions of a share; arrange for
disposition of fractional shares by the shareholders; issue scrip in registered
or bearer form entitling the holder to receive a full share upon surrendering
enough scrip to equal a full share. Each certificate representing scrip must be
conspicuously labeled "scrip" and must contain the information required by
Section 4-27-625B. The holder of a fractional share is entitled to exercise the
rights of a shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the corporation upon liquidation. The holder of
scrip is not entitled to any of these rights unless the scrip provides for them.
The Board of Directors may authorize the issuance of scrip subject to any
condition considered desirable, including (a) that the scrip will become void if
not exchanged for full shares before a specified date and (b) that the shares
for which the scrip is exchangeable may be sold and the proceeds paid to the
scripholders.
3. SHARE TRANSFERS. Upon compliance with any provisions restricting
the transferability of shares that may be set forth in the articles of
incorporation, these Bylaws, or any written agreement in respect thereof,
<PAGE>
transfers of shares of the corporation shall be made only on the books of the
corporation by the registered holder thereof, or by his attorney thereunto
authored by power of attorney duly executed and filed with the Secretary of the
corporation, or with a transfer agent or a registrar and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon, if any. Except as may be otherwise provided by law or these
Bylaws, the person in whose name shares stand on the books of the corporation
shall be deemed the owner thereof for all purposes as regards the corporation;
provided that whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact, if known to the Secretary of the
corporation, shall be so expressed in the entry of transfer.
4. RECORD DATE FOR SHAREHOLDERS. The Board of Directors may fix a
record date for one or more voting groups in order to determine the shareholders
entitled to notice of a shareholders' meeting, to demand a special meeting, to
vote, or to take any other action, provided, that a record date fixed under this
sentence may not be more than seventy days before the meeting or action
requiring a determination of shareholders. A determination of shareholders
entitled to notice of or to vote at a shareholders' meeting is effective for any
adjournment of the meeting unless the Board of Directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than one
hundred twenty days after the date fixed for the original meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of shareholders or 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 "share" or "shares" or "shareholder" or "shareholders"
refers to an outstanding share or shares and to a holder or holders of record of
outstanding 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 articles of incorporation confer such rights where
there are two or more classes or series of shares or upon which or upon whom the
Business Corporation Act confers such rights notwithstanding that the articles
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.
2
<PAGE>
6. SHAREHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date fixed from
time to time by the directors. A special meeting shall be held on the date fixed
from time to time by the directors except when the Business Corporation Act
confers the right to call a special meeting upon the shareholders.
- PLACE. Annual meetings and special meetings shall be held at
such place in or out of the State of Arkansas as the directors shall from time
to time fix; provides, however, that no shareholder meetings shall be held
within the Commonwealth of Massachusetts.
- CALL. Annual meetings may be called by the directors or the
Chairman of the Board of Directors, if any, the President, or the Secretary or
by any officer instructed by the directors or the President to call the meeting.
Special meetings may be called in like manner.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. The
corporation shall notify shareholders of the date, time, and place of each
annual and special shareholders' meeting. Except as the Business Corporation Act
requires otherwise such notice shall be given not more than sixty days nor fewer
than ten days before the meeting date. Unless the Business Corporation Act, the
Articles of Incorporation, or these Bylaws require otherwise, the corporation is
required to give notice only to shareholders entitled to vote at the meeting.
Unless the Business Corporation Act or the articles of incorporation require
otherwise, notice of an annual meeting need not include a description of the
purpose or purposes for which the meeting is called. Notice of a special meeting
must include a description of the purpose or purposes for which the meeting is
called. A shareholder may waive any notice required by the Business Corporation
Act, the articles of incorporation, or the Bylaws before or after the date and
time stated in the notice. The waiver must be in writing, be signed by the
shareholders entitled to the notice, and be delivered to the corporation for
inclusion in the minutes or filing with the corporate records. A shareholder's
attendance at a meeting waives objection to lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting; and waives
objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented. The term
"notice" as used in this paragraph shall mean either oral or written notice as
3
<PAGE>
prescribed by the provisions of Section 4-27-141 of the Business Corporation
Act.
- VOTING LIST FOR MEETING. After fixing a record date for a
meeting, the corporation shall prepare an alphabetical list of the names of all
its shareholders who are entitled to notice of a shareholders' meeting. The list
must be arranged by voting group, and within each voting group by class or
series of shares, and show the address of and number of shares held by each
shareholder. The shareholders' list must be available for inspection by any
shareholder entitled to vote at the meeting, beginning two business days after
notice of the meeting is given for which the list was prepared and continuing
through the meeting, at the corporation's principal office or at a place
identified in the meeting notice in the city where the meeting will be held. A
shareholder, his agent, or attorney, is entitled on written demand to inspect
and, subject to the requirements of Section 4-27-1602C of the Business
Corporation Act, to copy the list, during regular business hours and at the
shareholder's expense during the period it is available for inspection. The
corporation shall make the shareholders' list available at the meeting, and any
shareholder, his agent, or attorney is entitled to inspect the list at any time
during the meeting or any adjournment.
- CONDUCT OF MEETING. Meetings of the shareholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting -- the Chairman of the Board, if any, the Vice-Chairman of
the Board, if any, the President, a Vice-President, if any, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by the
shareholders. 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 chairman of the meeting
shall appoint a secretary of the meeting.
- PROXY REPRESENTATION. A shareholder may appoint a proxy to vote
or otherwise act for him by signing an appointment form, either personally or by
his attorney-in-fact. An appointment of a proxy is effective when received by
the Secretary or other officer or agent authorized to tabulate votes. An
appointment is valid for eleven months, unless a longer period is expressly
provided in the appointment form. An appointment of a proxy is revocable by the
shareholder unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest.
4
<PAGE>
- SHARES HELD BY NOMINEES. The corporation may establish a
procedure by which the beneficial owner of shares that are registered in the
name of a nominee is recognized by the corporation as the shareholder. The
extent of this recognition may be determined in the recognition procedure.
- QUORUM. Unless the articles of incorporation or the Business
Corporation Act provides otherwise, a majority of the votes entitled to be cast
on the matter by the voting group constitutes a quorum of that voting group for
action on that matter. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting.
- VOTING. Unless otherwise provided in the articles of
incorporation, directors are elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present. If a quorum exists, action on a matter, other than the election of
directors, by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation or the Business Corporation Act require a greater
number of affirmative votes.
7. ACTION WITHOUT MEETING. Action on proposals to increase the capital
stock or bond indebtedness of the corporation may be taken without a meeting of
shareholders if one or more written consents, setting forth the action so taken,
shall be signed by all of the shareholders of the corporation. Any other action
required or permitted by the Business Corporation Act to be taken at a
shareholders' meeting may be taken without a meeting if one or more written
consents, setting forth the actions so taken, shall be 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. Any written consent executed by
one or more shareholders pursuant to this paragraph shall be delivered to the
corporation for inclusion in the minutes or filing with the corporate records.
If the Business Corporation Act requires that notice of proposed action be given
to nonvoting shareholders and the action is to be taken by written consent of
the voting shareholders, the corporation must give its nonvoting shareholders,
if any, written notice
5
<PAGE>
of the proposed action at least ten days before the action is taken. The notice
must contain or be accompanied by the same material that, under the Business
Corporation Act, would have been required to be sent to nonvoting shareholders
in a notice of meeting at which the proposed action would have been submitted to
the shareholders for action.
ARTICLE II
----------
BOARD OF DIRECTORS
------------------
1. FUNCTIONS GENERALLY -- COMPENSATION. Subject to any limitation set
forth in the articles of incorporation, all corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
managed under the direction of, a Board of Directors. The Board may fix the
compensation of directors.
2. QUALIFICATIONS AND NUMBER. A director need not be a shareholder, a
citizen of the United States, or a resident of the State of Arkansas. The
initial Board of Directors shall consist of one person, which shall be the
number of directors until changed. Thereafter, the number of directors shall not
be less than three nor more than eleven. The number of directors may be fixed or
changed from time to time, within such minimum and maximum, by the shareholders
or by the Board of Directors. If not so fixed, the number shall be three. The
number of directors shall never be less than one.
3. TERMS AND VACANCIES. The terms of the initial directors of the
corporation expire at the first shareholders' meeting at which directors are
elected. The terms of all other directors expire at the next annual
shareholders' meeting following their election. A decrease in the number of
directors does not shorten an incumbent director's term. The term of a director
elected to fill a vacancy expires at the next shareholders' meeting at which
directors are elected. Despite the expiration of a director's term, he continues
to serve until his successor is elected and qualifies or until there is a
decrease in the number of directors. If a vacancy occurs on the Board of
Directors, including a vacancy resulting from an increase in the number of
directors, the shareholders or the Board of Directors may fill the vacancy; or
if the directors remaining in office constitute fewer than a quorum of the Board
of Directors, they may fill the vacancy by the affirmative vote of a majority of
all the directors remaining in office.
6
<PAGE>
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held as
soon after its election as the directors may conveniently assemble.
- PLACE. The Board of Directors may hold regular or special
meetings in or out of the State of Arkansas at such place as shall be fixed by
the Board; provided, however, that no meeting of the Board of Directors shall be
held within the Commonwealth of Massachusetts.
- CALL. No call shall be required for regular meetings for which
the time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, of the Vice-Chairman of the
Board, if any, of the President, or of a majority of the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. Regular meetings of
the Board of Directors may be held without notice of the date, time, place, or
purpose of the meeting. Written, or oral, notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly of the
directors thereat. The notice of any special meeting need not describe the
purpose of the meeting. A director may waive any notice required by the Business
Corporation Act or by these Bylaws before or after the date and time stated in
the notice. A director's attendance at or participation in a meeting waives any
required notice to the director of the meeting unless the director at the
beginning of the meeting or promptly upon his arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting. Except as hereinbefore provided, a
waiver must be in writing, signed by the director entitled to the notice, and
filed with the minutes or corporate records.
- QUORUM AND ACTION. A quorum of the Board of Directors consists
of a majority of the number of directors prescribed in or fixed in accordance
with these Bylaws. If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the Board of Directors.
The Board of Directors may permit any or all directors to participate in a
regular or special meeting by, or conduct the meeting through use of, any means
of communication by which all directors participating may simultaneously hear
each other during the meeting. A director participating in a meeting by this
means is deemed to be present in person at the meeting.
7
<PAGE>
- CHAIRMAN OF THE MEETING. Meetings of the Board of Directors
shall be presided over by the following directors in the order of seniority and
if present and acting -- the Chairman of the Board, if any, the Vice-Chairman of
the Board, if any, the President, or any other director chosen by the Board.
5. REMOVAL OF DIRECTORS. The shareholders may remove one or more
directors with or without cause pursuant to the provisions of Section 4-27-808
of the Business Corporation Act.
6. COMMITTEES. The Board of Directors may create one or more
committees and appoint members of the Board of Directors to serve on them. Each
committee must have two or more members, who serve at the pleasure of the Board
of Directors. The creation of a committee and the appointment of members to it
must be approved by the greater of (a) a majority of all the directors in office
when the action is taken; or (b) the number of directors required by the
articles of incorporation or these Bylaws to take action under the provisions of
Section 4-27-824 of the Business Corporation Act. The provisions of Sections
4-27-820 through 4-27-824 of the Business Corporation Act which govern meetings,
action without meetings, notice, and waiver of notice, and quorum and voting
requirements, apply to committees and their members as well. To the extent
specified by the Board of Directors or these Bylaws, each committee may exercise
the authority of the Board of Directors except such authority as may not be
delegated under the Business Corporation Act.
7. ACTION WITHOUT MEETING. Action required or permitted by the
Business Corporation Act to be taken at a Board of Directors' meeting may be
taken without a meeting if the action is taken by all members of the Board. The
action must be evidenced by one or more written consents describing the action
taken, signed by each director, and included in the minutes or filed with the
corporate records reflecting the action taken. Action taken under this paragraph
is effective when the last director signs the consent, unless the consent
specifies a different effective date.
ARTICLE III
-----------
OFFICERS
--------
The corporation shall have a President, and a Secretary, and such
other officers as may be deemed necessary, each or any of whom may be elected or
appointed
8
<PAGE>
by the directors or appointed by a duly elected or appointed officer. The same
individual may simultaneously hold more than one office in the corporation.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of shareholders and until his
successor has been elected and qualified.
Each officer of the corporation has the authority and shall perform
the duties prescribed by the Board of Directors or by direction of an officer
authorized by the Board of Directors to prescribe the duties of other officers;
provided, that the Secretary shall have the responsibility for preparing and
maintaining custody of minutes of the directors' and shareholders' meetings and
for authenticating records of the corporation.
The Board of Directors may remove any officer at any time with or
without cause.
ARTICLE IV
----------
REGISTERED OFFICE AND AGENT
---------------------------
The address of the initial registered office of the corporation and
the name of the initial registered agent of the corporation are set forth in the
original articles of incorporation.
ARTICLE V
---------
CORPORATE SEAL
--------------
The Corporate seal shall have inscribed thereon the name of the
corporation and shall be in such form and contain such other words and/or
figures as the Board of Directors shall determine or the law require.
ARTICLE VI
----------
FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
9
CERTIFICATE OF INCORPORATION
of
NEW WALLACE CORPORATION
The undersigned incorporator, in order to form a corporation
under the General Corporation Law of the State of Delaware, certifies as
follows:
1. Name. The name of the corporation is
NEW WALLACE CORPORATION (hereinafter called the
"Corporation").
2. Address; Registered Agent. The address of the
Corporation's registered office is 229 South State Street, City of
Dover, County of Kent, State of Delaware; and its registered agent
at such address is United States Corporation Company.
3. Purposes. The nature of the business and purposes
to be conducted or promoted by the Corporation are to engage in,
carry on and conduct any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
4. Number of Shares. The total number of shares of
stock which the Corporation shall have authority to issue is: one
thousand (1,000), all of which shall be shares of Common Stock of
the par value of One Dollar ($1.00) each.
5. Fare and Address of Incorporator. The name and
mailing address of the incorporator are: James L. Purcell, 345 Park
Avenue, New York, New York 10154.
6. Election of Directors. Members of the Board of
Directors may be elected either by written ballot or by voice vote.
<PAGE>
7. Limitation of Liability. No director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
8. Adoption, Amendment and/or Repeal of By-laws. The Board of
Directors may from time to time (after adoption by the undersigned of the
original by-laws of the Corporation) make, alter or repeal the by-laws of the
Corporation; provided, that any by-laws made, amended or repealed by the Board
of Directors may be amended or repealed, and any by-laws may be made, by the
stockholders of the Corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this
2
<PAGE>
6th day of October, 1986.
3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NEW WALLACE CORPORATION
-----------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
-----------------------------------------
We, Leonard Florence, President and Melvin L. Levine, Assistant
Secretary of New Wallace Corporation (the "Corporation"), a corporation existing
under the laws of the State of Delaware, do hereby certify as follows:
FIRST: That the Certificate of Incorporation of said corporation has
been amended as follows:
By striking out the whole of Article 1 thereof as it now exists and
inserting in lieu and instead thereof a new Article 1, reading as follows:
1. Name. The name of the corporation is WALLACE INTERNATIONAL
SILVERSMITHS, INC. (hereinafter called the "Corporation").
SECOND: That such amendment was proposed by the Board of Directors of
the Corporation and was duly adopted in accordance with the provisions of the
General Corporation Law of the State of Delaware by the written consent by the
sole stockholder of the Corporation in accordance with the
<PAGE>
2
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, we have signed this certificate this 27th day of
January, 1987.
/s/ Leonard Florence
-----------------------------------
President
ATTEST: /s/ Melvin L. Levine
-----------------------------------
Asst. Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WALLACE INTERNATIONAL SILVERSMITHS, INC.
Wallace International Silversmiths Inc., a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware,
DOES HEREBY CERTIFY
FIRST: That the Board of Directors of Wallace International
Silversmiths, Inc., by the unanimous written consent of its members dated
October 10, 1986, duly adopted a resolution setting forth a proposed amendment
to the Certificate of Incorporation of said corporation, declaring said
amendment to be advisable. The resolution setting forth the proposed amendment
is as follows:
NOW, THEREFORE, BE IT RESOLVED, that Paragraph FIRST
of the Certificate of Incorporation of this Corporation be and
it hereby is amended to read in its entirety as follows:
"FIRST: The name of the corporation is WISI Liquidating, Inc."
SECOND: That thereafter, the sole stockholder of the corporation, by
unanimous written consent given in accordance with Section 226 of the General
Corporation Law of the State of Delaware adopted the said amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said WALLACE INTERNATIONAL SILVERSMITHS,
INC. has caused its corporate seal to be hereunto affixed and this
Certificate to be signed by its Vice President, and attested
by its Secretary, this 27th day of January 1987.
WALLACE INTERNATIONAL SILVERSMITHS, INC.
By _________________________________
William H. Murphy, Vice President
ATTEST:
- --------------------------------
Warren A. Furst, Secretary
4
BY-LAWS
OF
WALLACE INTERNATIONAL SILVERSMITHS, INC.
(A Delaware Corporation)
------------------------
ARTICLE 1
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended from
time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means Wallace International Silversmiths, Inc.
1.7 "Director" means directors of the Corporation.
<PAGE>
2
1.8 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.2 of the By-Laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the Corporation.
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held at the
office of the Corporation or at such other place within or without the State of
Delaware as
<PAGE>
3
shall be specified or fixed in the notice of such meeting or in the waiver of
notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually for
the election of directors and the transaction of other business at such hour and
on such business day in May or June as may be determined by the Board and
designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual meeting
of stockholders for the election of directors and the transaction of other
business is not held within the months specified in Section 2.2, the Board shall
call a meeting of stockholders for the election of directors and the transaction
of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other than a
special meeting for the election of directors), unless otherwise prescribed by
statute, may be called at any time by the Board or by the President or by the
Secretary. At any special meeting of stockholders only such business may be
transacted as is related to the purpose or purposes of such meeting set forth in
the notice thereof given pursuant to Section 2.6 of the By-laws or in any waiver
of notice thereof given pursuant to Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at
<PAGE>
4
meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or for the purpose of determining
stockholders 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 may fix, in advance, a date as the record date for any
such determination of stockholders. Such date 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. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders 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;
2.5.2 The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the Board is necessary, shall be the day on which the first
written consent is expressed;
2.5.3 The record date for determining stockholders for any purpose
other than those specified in
<PAGE>
5
Sections 2.5.1 and 2.5.2 shall be at the close of business on the day on
which the Board adopts the resolution relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation Law
or the Certificate of Incorporation or the By-laws, stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
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. A copy of the notice of
any meeting shall be given, personally or by mail, not less than ten nor more
than sixty days before the date of the meeting, to each stockholder entitled to
notice of or to vote at such meeting. If mailed, such notice shall be deemed to
be given when deposited in the United States mail, with postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice required by this section has
been given
<PAGE>
6
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein. When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, the adjournment is for more than thirty 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 at the meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to any
stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the 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. Attendance of a stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
stockholder 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. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
<PAGE>
7
2.8 List of Stockholders. The Secretary shall prepare and make, or cause to
be prepared and made, at least ten days before every meeting of stockholders, 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 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 stockholder who is present.
2.9 Quorum of Stockholders; Adjournment. The holders of one-third of the
shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a
<PAGE>
8
majority of the shares of stock present in person or represented by proxy at any
meeting of stockholders, including an adjourned meeting, whether or not a quorum
is present, may adjourn such meeting to another time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation every stockholder of record shall be entitled at every meeting of
stockholders to one vote for each share of capital stock standing in his name on
the record of stockholders determined in accordance with Section 2.5 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in treating
the persons in whose names shares of capital stock stand on the record of
stockholders as owners thereof for all purposes. At any meeting of stockholders
(at which a quorum was present to organize the meeting), all matters, except as
otherwise provided by law or by the Certificate of Incorporation or by the
By-laws, shall be decided by a majority
<PAGE>
9
of the votes cast at such meeting by the holders of shares present in person or
represented by proxy and entitled to vote thereon, whether or not a quorum is
present when the vote is taken. All elections of directors shall be by written
ballot unless otherwise provided in the Certificate of Incorporation. In voting
on any other question on which a vote by ballot is required by law or is
demanded by any stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the stockholder voting or by his proxy, and shall
state the number of shares voted. On all other questions, the voting may be viva
voce. Every 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. The validity and
enforceability of any proxy shall be determined in accordance with Section 212
of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders. The
Board, in advance of any meeting of stockholders, 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 such meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. In case any person
<PAGE>
10
appointed fails to appear or act, the vacancy may be filled by appointment made
by the Board in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, 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
inspector or inspectors shall determine the number of shares outstanding and the
voting power of each, the 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 stockholders. On request of the person presiding at
the meeting or any stockholder entitled to vote thereat, the inspector or
inspectors shall make a report in writing of any challenge, question or matter
determined by him or them and execute a certificate of any fact found by him or
them. Any report or certificate made by the inspector or inspectors shall be
prima facie evidence of the facts stated and of the vote as certified by him or
them.
<PAGE>
11
2.12 Organization. At every meeting of stockholders, the President, or in
the absence of the President a Vice President, and in case more than one Vice
President shall be present, that Vice President designated by the Board (or in
the absence of any such designation, the most senior Vice President, based on
age, present), shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Written Consent of Stockholders Without A Meeting. Unless otherwise
provided in the Certificate of Incor-
<PAGE>
12
poration, any action required by the General Corporation Law 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
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. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
---------
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation.
<PAGE>
13
In addition to the powers expressly conferred by the By-laws, the Board may
exercise all powers and perform all acts which are not required, by the By-laws
or the Certificate of Incorporation or by law, to be exercised and performed by
the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of one
or more members. The total number of directors shall be fixed initially by the
incorporator and may thereafter be changed from time to time by action of the
stockholders or by action of the Board. Directors need not be stockholders. Each
director shall hold office until his successor is elected and qualified or until
his earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law or by
the Certificate of Incorporation, be elected by a plurality of the votes cast at
a meeting of stockholders by the holders of shares entitled to vote in the
election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided in
the Certificate of Incorporation, newly created directorships resulting from an
increase in the number of directors and vacancies occurring in the Board for any
other reason, including the removal of directors without cause, may be filled by
vote of a majority of the directors then in
<PAGE>
14
office, although less than a quorum, or by a sole remaining director, or may be
elected by a plurality of the votes cast by the holders of shares of capital
stock entitled to vote in the election at a special meeting of stockholders
called for that purpose. A director elected to fill a vacancy shall be elected
to hold office until his successor is elected and qualified, or until his
earlier death, resignation or removal.
3.5 Resignations. Any director may resign at any time by written notice to
the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section 141(k) of
the General Corporation Law, any or all of the directors may be removed with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors.
3.7 Compensation. Each director, in consideration of his service as such,
shall be entitled to receive from the Corporation such amount per annum or such
fees for attendance at directors' meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any
<PAGE>
15
committee of directors in consideration of his serving as such shall be entitled
to such additional amount per annum or such fees for attendance at committee
meetings, or both, as the Board may from time to time determine, together with
reimbursement for the reasonable expenses incurred by him in the performance of
his duties. Nothing contained in this section shall preclude any director from
serving the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board, regular
or special, may be held at any place within or without the State of Delaware.
The times and places for holding meetings of the Board may be fixed from time to
time by resolution of the Board or (unless contrary to resolution of the Board)
in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the annual
meeting of stockholders for the election of directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held at
any other time and place specified in a notice given as provided in Section 3.11
<PAGE>
16
of the By-laws for special meetings of the Board or in a waiver of notice
thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at such
times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special meetings of the Board shall be held whenever
called by the President or the Secretary or by any two or more directors. Notice
of each special meeting of the Board shall, if mailed, be addressed to each
director at the address designated by him for that purpose or, if none is
designated, at his last known address at least two days before the date on which
the meeting is to be held; or such notice shall be sent to each director at such
address by telegraph, cable, or wireless, or be delivered to him personally, not
later than the day before the date on which such meeting is to be held. Every
such notice shall state the time and place of the meeting but
<PAGE>
17
need not state the purposes of the meeting, except to the extent required by
law. If mailed, each notice shall be deemed given when deposited, with postage
thereon prepaid, in a post office or official depository under the exclusive
care and custody of the United States Postal Service. Such mailing shall be by
first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any meeting
of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
3.13 Waiver of Notice. Whenever notice is required to be given to any
director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-laws, a
written waiver thereof, 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
<PAGE>
18
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the directors, or members of a committee
of directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the President of the
Corporation, or in the absence of the President, a chairman chosen by a majority
of the directors present, shall preside. The Secretary shall act as secretary at
each meeting of the Board. In case the Secretary shall be absent from any
meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors shall
constitute a quorum for the transaction of business or of any specified item of
business at any meeting of the Board.
3.16 Action by the Board. All corporate action taken by the Board or any
committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be
<PAGE>
19
taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, 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
Section 3.16 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at the time of the
vote, if a quorum is present at such time, shall be the act of the Board.
ARTICLE 4
COMMITTEES OF THE BOARD
-----------------------
The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each
<PAGE>
20
committee to consist of one or more of the directors of the corporation. 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 thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board 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; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee
shall have
<PAGE>
21
the power or authority to declare a dividend or to authorize the issuance of
stock.
ARTICLE 5
OFFICERS
--------
5.1 Officers. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint one or more Vice Presidents and such other
officers as it may determine. The Board may designate one or more Vice
Presidents as Executive Vice Presidents, and may use descriptive words or
phrases to designate the standing, seniority or area of special competence of
the Vice Presidents elected or appointed by it. Each officer shall hold his
office until his successor is elected and qualified or until his earlier death,
resignation or removal in the manner provided in Section 5.2 of the By-laws. Any
two or more offices may be held by the same person. The Board may require any
officer to give a bond or other security for the faithful performance of his
duties, in such amount and with such sureties as the Board may determine. All
officers as between themselves and the Corporation shall have such authority and
perform such duties in the management of the Corporation as may be provided in
the By-laws or as the Board may from time to time determine.
<PAGE>
22
5.2 Removal of Officers. Any officer elected or appointed by the Board may
be removed by the Board with or without cause. The removal of an officer without
cause shall be without prejudice to his contract rights, if any. The election or
appointment of an officer shall not of itself create contract rights.
5.3 Resignations. Any officer may resign at any time by so notifying the
Board or the President or the Secretary in writing. Such resignation shall take
effect at the date of receipt of such notice or at such later time as is therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective. The resignation of an officer shall
be without prejudice to the contract rights of the Corporation, if any.
5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the By-laws for the regular
election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or
<PAGE>
23
other compensation by reason of the fact that he is also a director.
5.6 President. The President shall be the chief executive officer of the
Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, if present, preside at
all meetings of the stockholders and at all meetings of the Board. He may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed; and, in general, he shall perform all duties incident
to the office of President and such other duties as from time to time may be
assigned to him by the Board.
5.7 Vice Presidents. At the request of the President, or, in his absence,
at the request of the Board,
<PAGE>
24
the Vice Presidents shall (in such order as may be designated by the Board or,
in the absence of any such designation, in order of seniority based on age)
perform all of the duties of the President and so acting shall have all the
powers of and be subject to all restrictions upon the President. Any Vice
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board or by the By-laws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed; and
shall perform such other duties as from time to time may be assigned to him by
the Board or by the President.
5.8 Secretary. The Secretary, if present, shall act as secretary of all
meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice
<PAGE>
25
President, sign certificates for shares of capital stock of the Corporation; he
shall be custodian of the seal of the Corporation and may seal with the seal of
the Corporation, or a facsimile thereof, all certificates for shares of capital
stock of the Corporation and all documents the execution of which on behalf of
the Corporation under its corporate seal is authorized in accordance with the
provisions of the By-laws; he shall have charge of the stock ledger and also of
the other books, records and papers of the Corporation relating to its
organization and management as a Corporation, and shall see that the reports,
statements and other documents required by law are properly kept and filed; and
shall, in general, perform all the duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him by the Board
or by the President.
5.9 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against
<PAGE>
26
proper vouchers, cause such funds to be disbursed by checks or drafts on the
authorized depositaries of the Corporation signed in such manner as shall be
determined in accordance with any provisions of the By-laws, and be responsible
for the accuracy of the amounts of all moneys so disbursed; regularly enter or
cause to be entered in books to be kept by him or under his direction full and
adequate account of all moneys received or paid by him for the account of the
Corporation; have the right to require, from time to time, reports or statements
giving such information as he may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; render to the President or the Board, whenever the President or the Board,
respectively, shall require him so to do, an account of the financial condition
of the Corporation and of all his transactions as Treasurer; exhibit at all
reasonable times his books of account and other records to any of the directors
upon application at the office of the Corporation where such books and records
are kept; and, in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him by
the Board or by the President; and he may sign with the President or a Vice
President certificates for shares of capital stock of the Corporation.
<PAGE>
27
5.10 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries
and Assistant Treasurers shall perform such duties as shall be assigned to them
by the Secretary or by the Treasurer, respectively, or by the Board or by the
President. Assistant Secretaries and Assistant Treasurers may, with the
President or a Vice President, sign certificates for shares of capital stock of
the Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
authorized by the By-Laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of
<PAGE>
28
the Corporation, and, when authorized by the Board so to do, may pledge and
hypothecate or transfer any securities or other property of the Corporation as
security for any such loans or advances. Such authority conferred by the Board
may be general or confined to specific instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositaries as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of the
Corporation shall be represented
<PAGE>
29
by certificates in such form (consistent with the provisions of Section 158 of
the General Corporation Law) as shall be approved by the Board. Such
certificates 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 seal of the Corporation 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 registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certifi-
<PAGE>
30
cate or certificates representing such shares of capital stock properly endorsed
for transfer and upon payment of all necessary transfer taxes. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked
"Cancelled," with the date of cancellation, by the Secretary or an Assistant
Secretary or the transfer agent of the Corporation. A person in whose name
shares of capital stock shall stand on the books of the Corporation shall be
deemed the owner thereof to receive dividends, to vote as such owner and for all
other purposes as respects the Corporation. No transfer of shares of capital
stock shall be valid as against the Corporation, its stockholders and creditors
for any purpose, except to render the transferee liable for the debts of the
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of any
shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
<PAGE>
31
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the transfer
or registration of transfer of
<PAGE>
32
capital stock of the Corporation, if permitted by Section 202 of the General
Corporation Law and noted conspicuously on the certificate representing such
capital stock, may be enforced against the holder of the restricted capital
stock or any successor or transferee of the holder including an executor,
administrator, trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing such capital stock, a restriction,
even though permitted by Section 202 of the General Corporation Law, shall be
ineffective except against a person with actual knowledge of the restriction. A
restriction on the transfer or registration of transfer of capital stock of the
Corporation may be imposed either by the Certificate of Incorporation or by an
agreement among any number of stockholders or among such stockholders and the
Corporation. No restriction so imposed shall be binding with respect to capital
stock issued prior to the adoption of the restriction unless the holders of such
capital stock are parties to an agreement or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate
of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or
<PAGE>
33
make other distributions on the outstanding shares of capital stock in such
amounts and at such time or times as, in its discretion, the condition of
the affairs of the Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of capital stock of the
Corporation, or purchase warrants therefor, in accordance with law, or any
of its bonds, debentures, notes, scrip or other securities or evidences of
indebtedness;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper, as a
reserve fund to meet contingencies, or for equalizing dividends or for the
purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
<PAGE>
34
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. 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, by reason of the fact that he
is or was a director or an officer of the Corporation, 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 to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in effect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this Article 8 and the relevant
provisions of the General Corporation Law and other applicable law, if any, are
in effect, and any repeal or modification thereof shall not affect any rights or
obligations then existing with respect
<PAGE>
35
to any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may 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, by reason of the fact that he is or
was an 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, 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 to the fullest extent and in the manner set forth in
and permitted by the General Corporation Law, and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person
<PAGE>
36
who 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, partnership, joint venture, trust or
other enterprise, against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of Sections 8.1 and 8.2 of the By-laws or under Section 145 of
the General Corporation Law or any other provision of law.
ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 Books and Records. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of the
stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
<PAGE>
37
9.2 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by law,
the Board shall determine from time to time whether, and, if allowed, when and
under what conditions and regulations, the accounts, books, minutes and other
records of the Corporation, or any of them, shall be open to the inspection of
the stockholders or directors.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a circle
and shall bear the full name of the Corporation, the year of its incorporation
and the word "Delaware."
<PAGE>
38
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be changed,
by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, the President may,
from time to time, appoint one or more attorneys or agents of the Corporation,
in the name and on behalf of the Corporation, 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 stock or other securities of such other
corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any such
other
<PAGE>
39
corporation and thereat vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or new
By-laws may be adopted, by vote of the holders of the shares entitled to vote in
the election of directors. The By-laws may be altered, amended, supplemented or
repealed, or new By-laws may be adopted, by the Board. Any By-laws adopted,
altered, amended, or supplemented by the Board may be altered, amended, or
supplemented or repealed by the stockholders entitled to vote thereon.
STATE OF DELAWARE
[STATE INSIGNIA]
Office of Secretary of State
------------------------------------
I, GLENN C. KENTON, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF WALLACE INTERNATIONAL DE P.R. , FILED IN THIS OFFICE ON THE
TWENTY-FOURTH DAY OF OCTOBER, A.D. 1983, AT 10 O'CLOCK A.M.
| | | | | | | | | |
/s/ Glenn C. Kenton
------------------------------------
Glenn C. Kenton, Secretary of State
AUTHENTICATION: |0094779
DATE: 10/24/1983
732970052
<PAGE>
FILED
OCT 24 1983
/s/ Glenn C. Kenton
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
WALLACE INTERNATIONAL de P.R., INC.
FIRST: The name of the corporation is Wallace International de P.R., Inc.
SECOND: The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature or purposes of the business to be conducted or promoted
is:
To engage in any and all lawful acts or activities for which
corporations may be now or hereafter organized under The General
Corporation Law of Delaware.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is one thousand (1,000) shares of Common Stock,
par value Ten Dollars ($10.00) per share, amounting in the aggregate to Ten
Thousand Dollars ($10,000.00).
FIFTH: The name and mailing address of the sole incorporator is as
follows:
Arthur R. Miller
135 South LaSalle Street
Suite 1425
Chicago, Illinois 60603
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Meetings of the stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such places as may be designated from time to time by the Board
of Directors or in the by-laws of the corporation. Elections of directors need
not be by written ballot unless the by-laws of the corporation shall so provide.
EIGHTH: In furtherance of and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
<PAGE>
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to The General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 21st day of October , 1983.
/s/ Arthur R. Miller
-----------------------
Arthur R. Miller
-2-
<PAGE>
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
BE IT REMEMBERED that on this 21st day of October, l983 personally came
before me, a Notary Public for the State of Illinois, Arthur R. Miller, the
party to the foregoing certificate of incorporation, known to me personally to
be such, and acknowledged the said certificate to be his act and deed and that
the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Michelle Stein
------------------------
Notary Public
RECEIVED FOR RECORD
OCT 24 1983
LEO J. DUGAN, Jr. Recorder
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State of Delaware PAGE 1
[STATE INSIGNIA]
Office of Secretary of State
------------------------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF RENEWAL OF
WALLACE INTERNATIONAL DE P.R., INC., FILED IN THIS OFFICE ON THE TWENTY-SEVENTH
DAY OF JUNE, A.D. 1988, AT 9 O'CLOCK A.M.
| | | | | |
[SEAL OF THE DEPARTMENT OF STATE /s/ Michael Harkins
OFFICE OF THE SECRETARY OF STATE --------------------------------
DELAWARE] Michael Harkins, Secretary of State
AUTHENTICATION: |1766538
DATE: 06-28-88
888179168
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WALLACE INTERNATIONAL de P.R., INC.
Wallace International de P.R., Inc. (the "Corporation") , a
corporation organized and existing under and by virtue of the Delaware General
Corporation Law (the "GCL"), DOES HEREBY CERTIFY as follows:
FIRST: The sole director of the Corporation, by written consent
dated December 27, 1989 (and thereafter amended nunc pro tunc as of that date) ,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of the Corporation:
RESOLVED, that the Certificate of Incorporation of this Corporation
be amended by changing Article 4 thereof so that, as amended, said
Article shall be and read as follows:
"4A. The amount of the authorized capital stock of the
Corporation shall be One Hundred Fifty Thousand Dollars
($150,000.00), which shall be divided into two (2) classes of stock,
as follows:
(a) One Hundred Thirty Five Thousand (135,000) shares of
Common Stock having a par value of One Dollar ($1.00) per
share, and
<PAGE>
2
which shall possess exclusively all voting power for election
of directors and other purposes.
(b) Fifteen Thousand (15,000) shares of Special Class A Stock,
which shall be nonvoting stock, having a par value of One
Dollar ($1.00) per share.
4B. Special Class A Stock shall not be transferrable except to
the Corporation. Special Class A Stock may be repurchased or
redeemed, in whole or in part, by the Corporation at any time after
issuance thereof at the option of the Corporation upon payment of
the par value to the holder thereof. The deposit of such amount to
the credit of a registered holder in any bank in Puerto Rico shall
have the effect of making valueless and void any certificate
representing any shares outstanding against which such deposit shall
have been made. In case of liquidation, the holders of Special Class
A shares shall be entitled to participate proportionately with the
holders of the Common shares of capital stock in the distribution of
the net assets of the Corporation, but in no case to receive any
amount
<PAGE>
3
greater than the par value of the Special Class A shares.
4C. Dividends on Special Class A Stock, if any, shall be
determined by the Board of Directors, in its sole discretion, and
such dividends shall be payable when and as declared by the Board of
Directors. Dividends upon Special Class A shares shall not be
cumulative. Dividends upon the Common Stock of the Corporation may
be declared by the Board of Directors and paid, without any
dividends on Special Class A shares being declared and paid, and
dividends upon the Special Class A Stock of the Corporation may be
declared by the Board of Directors and paid, without any dividends
on the Common shares being declared and paid.
4D. Subject to Section 4E, the Certificate of Incorporation
may be amended at any time without the consent of the holders of
Special Class A Stock, and without the holders of Special Class A
Stock voting thereon, except as may otherwise be required by Section
242(b)(2) of the Delaware General Corporation Law or other
applicable law.
<PAGE>
4
4E. The number of authorized shares of Special Class A Stock
may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of
a majority of the Common Stock of the Corporation."
SECOND: That the sole stockholder of the Corporation has given
written consent to said amendment as of December 27, 1989 in accordance with the
provisions of Section 228 of the GCL.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the GCL.
IN WITNESS WHEREOF, we have signed this Certificate as of April 16,
1992
/s/ E. M. Randolph
---------------------------------------
E. Merle Randolph
Vice President
ATTEST:
/s/ Faye A. Florence
- ---------------------
Faye A. Florence
Secretary
BY-LAWS
-------
OF
WALLACE INTERNATIONAL de P. R., INC.
ARTICLE I
---------
OFFICES
The principal office of the corporation in the State of Delaware shall be
located at 100 West Tenth Street in the City of Wilmington and County of New
Castle. The corporation may have such other offices, either within or without
the State of Delaware, as the business of the corporation may require from time
to time.
The registered office of the corporation required by The General
Corporation Law to be maintained in the State of Delaware may be, but need not
be, identical with the principal office in the State of Delaware, and the
address of the registered office may be changed from time to time by the board
of directors.
ARTICLE II
----------
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall be
held on the last Friday in May in each year, beginning with the year 1984, at
the hour of 10:00 a.m., for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the day
fixed for the annual meeting shall be a legal holiday, such meeting shall be
held on the next succeeding business day. If the election of directors shall not
be held on the day designated herein for any annual meeting, or at any
adjournment thereof, the board of directors shall cause the election to be held
at a meeting of the shareholders as soon thereafter as conveniently may be.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the president, by the board of directors or by the holder of not less
than one-fifth of all the outstanding shares of the corporation.
SECTION 3. PLACE OF MEETING. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the board of
directors. A waiver of notice signed by all shareholders may designate any
place, either within or without the State of Delaware, as the place for the
holding of such meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall
<PAGE>
be the registered office of the corporation in the State of Delaware, except as
otherwise provided in Section 5 of this article.
SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting, and in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than forty days before the date of the meeting, or in the case
of a merger or consolidation not less than twenty nor more than forty days
before the meeting, either personally or by mail, by or at the direction of the
president, or the secretary, or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the records of the
corporation, with postage thereon prepaid.
SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall
meet at any time and place, either within or without the State of Delaware, and
consent to the holding of a meeting at such time and place, such meeting shall
be valid without call or notice, and at such meeting any corporate action may be
taken.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive payment of any
dividend or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may provide that the
stock transfer books shall be closed for a stated period but not to exceed, in
any case, forty days. If the stock transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days, or in
the case of a merger or consolidation, at least twenty days, immediately
preceding such meeting. In lieu of closing the stock transfer books, the board
of directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than forty
days and, for a meeting of shareholders, not less than ten days, or in the case
of a merger or consolidation not less than twenty days, immediately preceding
such meeting. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the board of directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders.
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<PAGE>
SECTION 7. VOTING LISTS. The officer or agent having charge of the
transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period of
ten days prior to such meeting, shall be kept on file at the registered office
of the corporation and shall be subject to inspection by any shareholder at any
time during usual business, hours. Such list shall also be produced and kept
open at the time and place of the meeting and shall be subject to the inspection
of any shareholder during the whole time of the meeting. The original share
ledger or transfer book, or a duplicate thereof kept in this State, shall be
prima facie evidence as to who are the shareholders entitled to examine such
list or share ledger or transfer book or to vote at any meeting of shareholders.
SECTION 8. QUORUM. A majority of the outstanding shares of the
corporation, represented in person or by proxy, shall constitute a quorum at any
meeting of shareholders; provided, that if less than a majority of the
outstanding shares are represented at said meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice. If
a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting shall be the act of the shareholders, unless the vote
of a greater number or voting by classes is required by The General Corporation
Law, the certificate of incorporation or these by-laws.
SECTION 9. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
SECTION 10. VOTING OF SHARES. Each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after three years from its date, unless the proxy provides for
a longer period.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine.
Shares standing in the name of a deceased person, a minor ward or an
incompetent person, may be voted by his administrator,
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<PAGE>
executor, court appointed guardian or conservator, either in person or by proxy
without a transfer of such shares into the name of such administrator, executor,
court appointed guardian or conservator. Shares standing in the name of a
trustee may be voted by him, either in person or by proxy.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by it in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares at any given time.
SECTION 12. CUMULATIVE VOTING. In all elections for directors, every
shareholder shall have the right to vote, in person or by proxy, the number of
shares owned by him, for as many persons as there are directors to be elected,
or to cumulate said shares, and give one candidate as many votes as the number
of directors multiplied by the number of his shares shall equal, or to
distribute them on the same principle among as many candidates as he shall see
fit.
SECTION 13. INSPECTORS. At any meeting of shareholders, the chairman of
the meeting may, or upon the request of any shareholder shall, appoint one or
more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares
represented at the meeting based upon their determination of the validity and
effect of proxies; count all votes and report the results; and do such other
acts as are proper to conduct the election and voting with impartiality and
fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there be more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
-4-
<PAGE>
SECTION 14. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
SECTION 15. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
-----------
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its board of directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of
the corporation shall be four. Each director shall hold office until the next
annual meeting of the shareholders and until his successor shall have been
elected and qualified. Directors need not be residents of Delaware or
shareholders of the corporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors
shall be held without other notice than this by-law, immediately after, and at
the same place as, the annual meeting of shareholders. The board of directors
may provide, by resolution, the time and place, either within or without the
State of Delaware, for the holding of additional regular meetings without other
notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the president or any two directors. The
person or persons authorized to call special meetings of the board of directors
may fix any place, either within or without the State of Delaware, as the place
for holding any special meeting of the board of directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at least
ten days previous thereto by written notice delivered personally or mailed to
each director at his business address, or by telegram. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any director may waive notice of any meeting. The attendance
of a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose of
objecting to the transaction of any business because the
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<PAGE>
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of notice of such
meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by these
by-laws shall constitute a quorum for transaction of business at any meeting of
the board of directors, provided that if less than a majority of such number of
directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
SECTION 7. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
SECTION 8. VACANCIES. Any vacancy occurring in the board of directors and
in any directorship to be filled by reason of an increase in the number of
directors, may be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose.
SECTION 9. INFORMAL ACTION BY DIRECTORS. Unless specifically prohibited by
the articles of incorporation or these by-laws, any action required to be taken
at a meeting of the board of directors, or any other action which may be taken
at a meeting of the board of directors or the executive committee thereof, may
be taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all the directors entitled to vote with respect to the
subject matter thereof, or by all the members of such committee, as the case may
be. Any such consent signed by all the directors or all the members of the
executive committee shall have the same effect as a unanimous vote, and may be
stated as such in any document filed with the Secretary of State.
SECTION 10. COMPENSATION. The board of directors, by the affirmative vote
of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise. By resolution of the board of directors the directors may
be paid their expenses, if any, of attendance at each meeting of the board.
SECTION 11. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the secretary of the corporation immediately
after the
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<PAGE>
adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
ARTICLE IV
----------
OFFICERS
"SECTION 1. NUMBER. The officers of the corporation shall be a president,
one or more vice presidents (the number thereof to be determined by the board of
directors), a treasurer, a secretary and such assistant treasurers, assistant
secretaries or other officers as may be elected or appointed by the board of
directors. Any two or more offices may be held by the same person, except the
offices of president and secretary."
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices filled at any meeting of the board of directors. Each officer shall hold
office until his successors shall have been duly elected and shall have
qualified or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided. Election or appointment of an officer or
agent shall not of itself create contract rights.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term.
FURTHER RESOLVED, that Article IV, Section 5. CHAIRMAN OF THE BOARD
of the By-laws of the Corporation be and it hereby is deleted in its
entirety.
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<PAGE>
SECTION 5. PRESIDENT. The president shall be the principal executive
officer of the corporation and shall in general supervise and control all of the
business and affairs of the corporation. He shall preside at all meetings of the
shareholders and of the board of directors. He may sign, with the secretary of
any other proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
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 shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the board of directors from time to time.
SECTION 6. THE VICE PRESIDENT. In the absence of the president or in the
event of his inability or refusal to act, the vice president (or in the event
there be more than one vice president, the vice presidents in the order
designated or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. Any vice president may sign, with the secretary or an assistant
secretary, certificates for shares of the corporation; and shall perform such
other duties as from time to time may be assigned to him by the president or by
the board of directors.
SECTION 7. THE TREASURER. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the board of directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Article V
of these by-laws; (b) in general perform all the duties as from time to time may
be assigned to him by the president or by the board of directors.
SECTION 8. THE SECRETARY. The secretary shall: (a) keep the minutes of the
shareholders and of the board of directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these
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<PAGE>
by-laws; (d) keep a register of the post-office address of each shareholder
which shall be furnished to the secretary by such shareholder; (e) sign with the
president or a vice president certificates for shares of the corporation, the
issue of which shall have been authorized by resolution of the board of
directors; (f) have general charge of the stock transfer books of the
corporation; (g) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
SECTION 10. SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the board of directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as the board of directors may
select.
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. 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 president or a vice
president and by the secretary or an assistant secretary and shall be sealed
with the seal of the corporation. All certificates for shares shall be
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<PAGE>
consecutively numbered or otherwise identified. The name of the person to whom
the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the corporation. All certificates
surrendered to the corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms and indemnity to the corporation as the board of directors may prescribe.
SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation
shall be made only on the books of the corporation by the holder of record
thereof or by his legal representative, who shall furnish proper authority to
transfer, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the secretary of the corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name shares
stand on the books of the corporation shall be deemed the owner thereof for all
purposes as regards the corporation.
ARTICLE VII
-----------
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of January
in each year and end on the last day of December in each year.
ARTICLE VIII
------------
DIVIDENDS
The board of directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its articles of incorporation.
ARTICLE IX
----------
SEAL
The board of directors shall provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words, "Corporate Seal, Delaware".
ARTICLE X
---------
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the provisions
of these by-laws, the articles of incorporation or The General Corporation Law
of the State of Delaware, a waiver
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<PAGE>
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE XI
----------
AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be
adopted at any meeting of the board of directors of the corporation by a
majority vote of the directors present at the meeting.
ARTICLE XII
-----------
INDEMNIFICATION
SECTION 1. LIMITED INDEMNIFICATION OF DIRECTORS AND OFFICERS. Subject to
the limitations of subsection (c) of this Section 1, the corporation shall
indemnify each of its directors and officers to the extent set forth in
subsections (a) and (b) hereof:
(a) Action or Suit by or in the Right of the Corporation. Each director
and officer of the corporation who was or is a party, or is threatened to be
made a party,
(i) to any threatened, pending or completed action or suit, by or in
the right of the corporation, to procure a judgment in its favor, or
(ii) 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,
shall be indemnified against expenses (including attorney's 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; provided
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, the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
(b) Action or Suit Other Than by or in the Right of the Corporation. Each
director or officer of the corporation who was or is a party, or is threatened
to be made a party,
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<PAGE>
(i) to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action or suit by or in the right of the corporation),
(ii) 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,
shall be indemnified against expenses (including attorney's 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;
provided that 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 director or
officer
(i) 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
(ii) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(c) Limitations of Indemnification. No indemnification shall be made by
the corporation under subsections (a) and (b) of this Section 1 unless ordered
by a court or it is determined in the specific case that indemnification of such
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) or (b) hereof. Such
determination shall be made (l) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to the action, suit or
proceeding referred to, or (2) if such a quorum is not obtainable, or even if
obtainable, when a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the shareholders.
SECTION 2. GENERAL INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any other
provision of this Article XII to the contrary notwithstanding, to the extent
that a director or officer of the corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) or (b) of said Section 1, or in the defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorney's fees) actually
-12-
<PAGE>
and reasonably incurred by him in connection therewith.
SECTION 3. ADVANCE PAYMENT IN INDEMNIFICATION CASES. If authorized by the
Board of Directors in any specific case, expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the board of directors in the specific case upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this Section. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
SECTION 4. CONTINUITY AND NONEXCLUSIVITY OF INDEMNIFICATION. This
indemnification provided by this Article XII shall continue with respect to any
director or officer of the corporation after he has ceased to hold his office
and shall inure to the benefit of his heirs, executors and administrators. Any
such indemnification (whether as expressly provided herein or as extended
pursuant to Section 5 of this Article XII) shall not be deemed exclusive of any
other rights to which the person seeking indemnification may be entitled under
any other By-Law, agreement, vote of shareholders or disinterested directors or
otherwise.
SECTION 5. EXTENSION OF BENEFITS OF INDEMNIFICATION. The rights of
indemnification to which directors and officers of the corporation are entitled
pursuant to this Article XII may, in similar circumstances, be extended by
resolution of the Board of Directors to any other person who is or was an
employee or agent of the corporation, or while not a director or officer of the
corporation, 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. Any such action by the Board of Directors shall be
consistent with the requirements of the General Corporation Act of the State of
Illinois and may be either general or confined to specific cases.
SECTION 6. INDEMNIFICATION INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of a
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation indemnifies him against such
liability under, or pursuant to, the provisions of this Article XII.
-13-
[STATE INSIGNIA]
State
of
DELAWARE
Office of SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of Delaware, do hereby
certify that the attached is a true and correct copy of Certificate of
Incorporation filed in this office on November 29, 1983
/s/ Michael Harkins
-----------------------------------------
Michael Harkins, Secretary of State
BY: /s/ J Butler
-------------------------------------
DATE: October 23, 1987
[SEAL OF DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
DELAWARE]
<PAGE>
FILED
NOV 29 1983 9AM
/S/ Steven C. Keaton
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL SILVER COMPANY
FIRST: The name of the corporation is
International Silver Company
SECOND: The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature or purposes of the business to be conducted or promoted
is:
To engage in any and all lawful acts or activities for which
corporations may be now or hereafter organized under The General
Corporation Law of Delaware.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is one thousand (1,000) shares of Common Stock,
par value Ten Dollars ($10.00) per share, amounting in the aggregate of Ten
Thousand Dollars ($10,000.00).
FIFTH: The name and mailing address of the sole incorporator is as
follows:
Arthur R. Miller
135 South LaSalle Street
Suite 1425
Chicago, Illinois 60603
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Meetings of the stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such places as may be designated from time to time by the Board
of Directors or in the by-laws of the corporation. Elections of directors need
not be by written ballot unless the by-laws of the corporation shall so provide.
EIGHTH: In furtherance of and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
<PAGE>
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
NINTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to The General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 17th day of November, 1983.
/s/ Arthur R. Miller
---------------------------------------
Arthur R. Miller
BY-LAWS
OF
INTERNATIONAL SILVER COMPANY
(A Delaware Corporation)
-----------------------------
ARTICLE 1
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means International Silver Company.
1.7 "Directors" means directors of the Corporation.
<PAGE>
2
1.8 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.2 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the
Corporation.
<PAGE>
3
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held at
the office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or in
the waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually
for the election of directors and the transaction of other business at such hour
and on such business day in May or June as may be determined by the Board and
designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors. Etc. If the annual
meeting of stockholders for the election of directors and the transaction of
other business is not held within the months specified in Section 2.2, the Board
shall call a meeting of stockholders for the election of directors and the
transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other
than a special meeting for the election
<PAGE>
4
of directors), unless otherwise prescribed by statute, may be called at any time
by the Board or by the President or by the Secretary. At any special meeting of
stockholders only such business may be transacted as is related to the purpose
or purposes of such meeting set forth in the notice thereof given pursuant to
Section 2.6 of the By-laws or in any waiver of notice thereof given pursuant to
Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders 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
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date 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. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the
<PAGE>
5
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;
2.5.2 The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the
first written consent is expressed;
2.5.3 The record date for determining stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
in Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, stockholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date. and hour of the meeting and, in the case of a
special meeting, the purpose or
<PAGE>
6
purposes for which the meeting is called. A copy of the notice of any meeting
shall be given, personally or by mail, not less than ten nor more than sixty
days before the date of the meeting, to each stockholder entitled to notice of
or to vote at such meeting. If mailed, such notice shall be deemed to be given
when deposited in the United States mail, with postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation. An
affidavit of the Secretary or an Assistant Secretary or of the 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 stated therein.
When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, the adjournment is for more than thirty 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 at the meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to
any stockholder under any provision of the General Corporation Law or the
Certificate of
<PAGE>
7
Incorporation or the 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. Attendance of a stockholder at a meeting
shall constitute a waiver of notice of such meeting, except when the stockholder
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. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
stockholders, 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 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.
<PAGE>
8
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 stockholder who is
present.
2.9 Quorum of Stockholders Adjournment. The holders of one-third of
the shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in person
or represented by proxy at any meeting of stockholders, including an adjourned
meeting, whether or not a quorum is present, may adjourn such meeting to another
time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate
of Incorporation every stockholder of record shall be entitled at every meeting
of stockholders to one vote for each share of capital stock standing in his name
on the record of stockholders determined in accordance with Section 2.5 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes
<PAGE>
9
of such stock. The provisions of Sections 212 and 217 of the General Corporation
Law shall apply in determining whether any shares of capital stock may be voted
and the persons, if any, entitled to vote such shares; but the Corporation shall
be protected in treating the persons in whose names shares of capital stock
stand on the record of stockholders as owners thereof for all purposes. At any
meeting of stockholders (at which a quorum was present to organize the meeting),
all matters, except as otherwise provided by law or by the Certificate of
Incorporation or by the By-laws, shall be decided by a majority of the votes
cast at such meeting by the holders of shares present in person or represented
by proxy and entitled to vote thereon, whether or not a quorum is present when
the vote is taken. All elections of directors shall be by written ballot unless
otherwise provided in the Certificate of Incorporation. In voting on any other
question on which a vote by ballot is required by law or is demanded by any
stockholder entitled to vote, the voting shall be by ballot. Each ballot shall
be signed by the stockholder voting or by his proxy, and shall state the number
of shares voted. On all other questions, the voting may be viva voce. Every
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. The
<PAGE>
10
validity and enforceability of any proxy shall be determined in accordance with
Section 212 of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
The Board, in advance of any meeting of stockholders, 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 such meeting may, and on the request
of any stockholder 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 in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, 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 inspector or inspectors shall determine the
number of shares outstanding and the voting power of each, the 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
<PAGE>
11
fairness to all stockholders. On request of the person presiding at the meeting
or any stockholder entitled to vote thereat, the inspector or inspectors shall
make a report in writing of any challenge, question or matter determined by him
or them and execute a certificate of any fact found by him or them. Any report
or certificate made by the inspector or inspectors shall be prima fade evidence
of the facts stated and of the vote as certified by him or them.
2.12 Organization. At every meeting of stockholders, the President,
or in the absence of the President a Vice President, and in case more than one
Vice President shall be present, that Vice President designated by the Board (or
in the absence of any such designation, the most senior Vice President, based on
age, present) , shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
stockholders shall be as determined by the
<PAGE>
12
chairman of the meeting, but the order of business to be followed at any meeting
at which a quorum is present may be changed by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law 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 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. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
<PAGE>
13
ARTICLE 3
DIRECTORS
---------
3.1 General Powers. Except as otherwise provided in the Certificate
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by the By-laws or the Certificate of
Incorporation or by law, to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist
of one or more members. The total number of directors shall be fixed initially
by the incorporator and may thereafter be changed from time to time by action of
the stockholders or by action of the Board. Directors need not be stockholders.
Each director shall hold office until his successor is elected and qualified or
until his earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law
or by the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of
<PAGE>
14
stockholders by the holders of shares entitled to vote in the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise
provided in the Certificate of Incorporation, newly created directorships
resulting from an increase in the number of directors and vacancies occurring in
the Board for any other reason, including the removal of directors without
cause, may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A director elected to fill a vacancy shall be elected to hold
office until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section
l4l(K) of the General Corporation Law, any or all of the directors may be
removed with or without cause,
<PAGE>
15
by the holders of a majority of the shares then entitled to vote at an election
of directors.
3.7 Compensation. Each director, in consideration of his service as
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
<PAGE>
16
3.9 Annual Meetings. On the day when and at the place where the
annual meeting of stockholders for the election of directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
whenever called by the President or the Secretary or by any two or more
directors. Notice of each special meeting of the Board shall, if mailed, be
addressed to each director at the address designated by him for that
<PAGE>
17
purpose or, if none is designated, at his last known address at least two days
before the date on which the meeting is to be held; or such notice shall be sent
to each director at such address by telegraph, cable, or wireless, or be
delivered to him personally, not later than the day before the date on which
such meeting is to be held. Every such notice shall state the time and place of
the meeting but need not state the purposes of the meeting, except to the extent
required by law. If mailed, each notice shall be deemed given when deposited,
with postage thereon prepaid, in a post office or official depository under the
exclusive care and custody of the United States post office department. Such
mailing shall be by first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
3.13 Waiver of Notice. Whenever notice is required to be given to
any director or member of a committee of directors under any provision of the
General Corporation
<PAGE>
18
Law or of the Certificate of Incorporation or By-laws, a written waiver thereof,
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 is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the directors, or members of a
committee of directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the President of
the Corporation, or in the absence of the President, a chairman chosen by a
majority of the directors present, shall preside. The Secretary shall act as
secretary at each meeting of the Board. In case the Secretary shall be absent
from any meeting of the Board, an Assistant Secretary shall perform the duties
of secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors
shall constitute a quorum for the
<PAGE>
19
transaction of business or of any specified item of business at any meeting of
the Board.
3.16 Action by the Board. All corporate action taken by the Board or
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, 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
Section 3.16 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at the time of the
vote, if a quorum is present at such time, shall be the act of the Board.
<PAGE>
20
ARTICLE 4
COMMITTEES OF THE BOARD
-----------------------
The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist of one or
more of the directors of the corporation. 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 thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board 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; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation
<PAGE>
21
or a revocation of a dissolution, or amending the By-laws of the Corporation;
and, unless the resolution designating it expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
ARTICLE 5
OFFICERS
--------
5.1 Officers. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint one or more Vice Presidents and such other
officers as it may determine. The Board may designate one or more Vice
Presidents as Executive Vice Presidents, and may use descriptive words or
phrases to designate the standing, seniority or area of special competence of
the Vice Presidents elected or appointed by it. Each officer shall hold his
office until his successor is elected and qualified or until his earlier death,
resignation or removal in the manner provided in Section 5.2 of the By-laws. Any
two or more offices may be held by the same person. The Board may require any
officer to give a bond or other security for the faithful performance of his
duties, in such amount and with such sureties as the Board may determine. All
officers as between themselves and the Corporation shall have such authority and
perform such duties
<PAGE>
22
in the management of the Corporation as may be provided in the By-laws or as the
Board may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the
Board may be removed by the Board with or without cause. The removal of an
officer without cause shall be without prejudice to his contract rights, if any.
The election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying
the Board or the President or the Secretary in writing. Such resignation shall
take effect at the date of receipt of such notice or at such later time as is
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any.
5.4 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in the By-laws for
the regular election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may
be fixed from time to tine by the Board. No officer shall be prevented from
receiving a salary or
<PAGE>
23
other compensation by reason of the fact that he is also a director.
5.6 President. The President shall be the chief executive officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, if present, preside at
all meetings of the stockholders and at all meetings of the Board. He may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and executive
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed; and, in general, he shall perform all duties incident
to the office of President and such other duties as from time to time may be
assigned to him by the Board.
5.7 Vice Presidents. At the request of the President, or, in his
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board or, in the absence of any such designation, in
order of seniority based on age) perform all of the duties of
<PAGE>
24
the President and so acting shall have all the powers of and be subject to all
restrictions upon the President. Any Vice President may also, with the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer,
sign certificates for shares of capital stock of the Corporation; may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments authorized by the Board, except in cases where the signing and
execution thereof shall be expressly delegated by the Board or by the By-laws to
some other officer or agent of the Corporation, or shall be required by law
otherwise to be signed or executed; and shall perform such other duties as from
time to time may be assigned to him by the Board or by the President.
5.8 Secretary. The Secretary, if present, shall act as secretary of
all meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which on behalf of the Corporation under its
corporate seal
<PAGE>
25
is authorized in accordance with the provisions of the By-laws; he shall have
charge of the stock ledger and also of the other books, records and papers of
the Corporation relating to its organization and management as a Corporation,
and shall see that the reports, statements and other documents required by law
are properly kept and filed; and shall, in general, perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Board or by the President.
5.9 Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the
By-laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation; have the right to require, from time to
<PAGE>
26
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of the
Corporation where such books and records are kept; and, in general, perform all
the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.10 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
<PAGE>
27
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
<PAGE>
28
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositaries as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDBNDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates 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 seal of the Corporation 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 registrar
other than the Corporation itself or its employee. In case any officer, transfer
agent or registrar who has signed or whose facsimile
<PAGE>
29
signature has been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may, unless otherwise ordered by the Board, be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the
<PAGE>
30
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
<PAGE>
31
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number of stockholders
or
<PAGE>
32
among such stockholders and the Corporation. No restriction so imposed shall be
binding with respect to capital stock issued prior to the adoption of the
restriction unless the holders of such capital stock are parties to an agreement
or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such amounts
and at such time or times as, in its discretion, the condition of the
affairs of the Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus
of the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants therefor, in accordance with law,
or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness;
7.7.3 May set aside from time to time out of such surplus or
net profits such sum or sums as, in its discretion, it may think proper,
as a reserve fund to meet contingencies, or for equalizing dividends or
for the purpose of maintaining or increasing the property or business of
the Corporation, or for any purpose it may
<PAGE>
33
think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. 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, by reason of the fact that he
is or was a director or an officer of the Corporation, 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 to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in effect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this Article 8 and the relevant
provisions of the General Corporation Law and other applicable law, if any, are
in effect, and any
<PAGE>
34
repeal or modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may 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 by reason of the fact that he is or
was an 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, 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 to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person
<PAGE>
35
who 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, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of Sections 8.1 and 8.2 of the By-laws or under Section 145 of
the General Corporation Law or any other provision of law.
ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of the stockholders, the Board and any committee of the Board. The Corporation
shall keep at the office designated in the Certificate of Incorporation or at
the office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
<PAGE>
36
9.2 Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware."
<PAGE>
37
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, the President
may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, 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 stock or other securities of such
other corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any such
other corporation and thereat vote or exercise any or all other
<PAGE>
38
powers of the Corporation as the holder of such stock or other securities of
such other corporation.
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or
new By-laws may be adopted, by vote of the holders of the shares entitled to
vote in the election of directors. The By-laws may be altered, amended,
supplemented or repealed, or new By-laws may be adopted, by the Board. Any
By-laws adopted, altered, amended, or supplemented by the Board may be altered,
amended, or supplemented or repealed by the stockholders entitled to vote
thereon.
[STATE INSIGNIA]
State
of
DELAWARE
[LOGO]
Office of SECRETARY OF STATE
I, Michael Harkins, Secretary of State of the State of Delaware, do hereby
certify that the attached is a true and correct copy of Certificate of
Incorporation filed in this office on December 2, 1983
/s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
BY: /s/ J. Butler
-------------------------------
DATE: October 23, 1987
[SEAL OF DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
OF DELAWARE]
<PAGE>
8303360169
FILED
DEC 2 1983
/s/ Steven C. Keaton
Secretary of State
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL SILVER de P.R., INC.
FIRST: The name of the corporation is
International Silver de P.R., Inc.
SECOND: The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature or purposes of the business to be conducted or promoted
is:
To engage in any and all lawful acts or activities for which
corporations may be now or hereafter organized under The General
Corporation Law of Delaware.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is one thousand (1,000) shares of Common Stock,
par value Ten Dollars ($10.00) per share, amounting in the aggregate to Ten
Thousand Dollars ($l0,000.00)
FIFTH: The name and mailing address of the sole incorporator is as
follows:
Arthur R Miller
135 South LaSalle Street
Suite l425
Chicago, Illinois 60603
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Meetings of the stockholders ray be held within or without the
State of Delaware, as the by-laws may provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such places as may be designated from time to time by the Board
of Directors or in the by-laws of the corporation. Elections of directors need
not be by written ballot unless he by-laws of the corporation shall so provide.
EIGHTH: In furtherance of and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
<PAGE>
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to The General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 17th day of November , 1983.
/s/ Arthur R. Miller
----------------------------------
Arthur R. Miller
BY-LAWS
OF
INTERNATIONAL SILVER DE P.R., INC.
(A Delaware Corporation)
----------------
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means International Silver de P.R., Inc.
1.7 "Directors" means directors of the Corporation.
<PAGE>
2
1.8 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.2 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the
Corporation.
<PAGE>
3
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held
at the office of the Corporation or at such other place within or without the
State of Delaware as shall be specified or fixed in the notice of such meeting
or in the waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually
for the election of directors and the transaction of other business at such hour
and on such business day in May or June as may be determined by the Board and
designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of stockholders for the election of directors and the transaction of
other business is not held within the months specified in Section 2.2, the Board
shall call a meeting of stockholders for the election of directors and the
transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other
than a special meeting for the election
<PAGE>
4
of directors), unless otherwise prescribed by statute, may be called at any
time by the Board or by the President or by the Secretary. At any special
meeting of stockholders only such business may be transacted as is related to
the purpose or purposes of such meeting set forth in the notice thereof given
pursuant to Section 2.6 of the By-laws or in any waiver of notice thereof given
pursuant to Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders 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
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date 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. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the
<PAGE>
5
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;
2.5.2 The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the
first written consent is expressed;
2.5.3 The record date for determining stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
in Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, stockholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or
<PAGE>
6
purposes for which the meeting is called. A copy of the notice of any meeting
shall be given, personally or by mail, not less than ten nor more than sixty
days before the date of the meeting, to each stockholder entitled to notice of
or to vote at such meeting. If mailed, such notice shall be deemed to be given
when deposited in the United States mail, with postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation. An
affidavit of the Secretary or an Assistant Secretary or of the 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 stated therein.
When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, the adjournment is for more than thirty 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 at the meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to
any stockholder under any provision of the General Corporation Law or the
Certificate of
<PAGE>
7
Incorporation or the 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. Attendance of a stockholder at a meeting
shall constitute a waiver of notice of such meeting, except when the stockholder
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. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
stockholders, 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 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.
<PAGE>
8
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 stockholder who is
present.
2.9 Quorum of Stockholders, Adjournment. The holders of one-third of
the shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in person
or represented by proxy at any meeting of stockholders, including an adjourned
meeting, whether or not a quorum is present, may adjourn such meeting to another
time and place.
2.10 Voting, Proxies. Unless otherwise provided in the Certificate
of Incorporation every stockholder of record shall be entitled at every meeting
of stockholders to one vote for each share of capital stock standing in his name
on the record of stockholders determined in accordance with Section 2.5 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes
<PAGE>
9
of such stock. The provisions of Sections 212 and 217 of the General Corporation
Law shall apply in determining whether any shares of capital stock may be voted
and the persons, if any, entitled to vote such shares; but the Corporation shall
be protected in treating the persons in whose names shares of capital stock
stand on the record of stockholders as owners thereof for all purposes. At any
meeting of stockholders (at which a quorum was present to organize the meeting)
, all matters, except as otherwise provided by law or by the Certificate of
Incorporation or by the By-laws, shall be decided by a majority of the votes
cast at such meeting by the holders of shares present in person or represented
by proxy and entitled to vote thereon, whether or not a quorum is present when
the vote is taken. All elections of directors shall be by written ballot unless
otherwise provided in the Certificate of Incorporation. In voting on any other
question on which a vote by ballot is required by law or is demanded by any
stockholder entitled to vote, the voting shall be by ballot. Each ballot shall
be signed by the stockholder voting or by his proxy, and shall state the number
of shares voted. On all other questions, the voting may be viva voce. Every
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. The
<PAGE>
10
validity and enforceability of any proxy shall be determined in accordance with
Section 212 of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
The Board, in advance of any meeting of stockholders, 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 such meeting may, and on the request
of any stockholder 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 in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, 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 inspector or inspectors shall determine the
number of shares outstanding and the voting power of each, the 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
<PAGE>
11
fairness to all stockholders. On request of the person presiding at the meeting
or any stockholder entitled to vote thereat, the inspector or inspectors shall
make a report in writing of any challenge, question or matter determined by him
or them and execute a certificate of any fact found by him or them. Any report
or certificate made by the inspector or inspectors shall be prima facie evidence
of the facts stated and of the vote as certified by him or them.
2.12 Organization. At every meeting of stockholders, the President,
or in the absence of the president a Vice President, and in case more than one
Vice President shall be present, that Vice President designated by the Board (or
in the absence of any such designation, the most senior Vice President, based on
age, present), shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
stockholders shall be as determined by the
<PAGE>
12
chairman of the meeting, but the order of business to be followed at any meeting
at which a quorum is present may be changed by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law 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 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. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
<PAGE>
13
ARTICLE 3
DIRECTORS
---------
3.1 General Powers. Except as otherwise provided in the Certificate
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the director of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by the By-laws or the Certificate of
Incorporation or by law, to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist
of one or more members. The total number of directors shall be fixed initially
by the incorporator and may thereafter be changed from time to time by action of
the stockholders or by action of the Board. Directors need not be stockholders.
Each director shall hold office until his successor is elected and qualified or
until his earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law
or by the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of
<PAGE>
14
stockholders by the holders of shares entitled to vote in the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise
provided in the Certificate of Incorporation, newly created directorships
resulting from an increase in the number of directors and vacancies occurring in
the Board for any other reason, including the removal of directors without
cause, may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A director elected to fill a vacancy shall be elected to hold
office until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section
l4l(K) of the General Corporation Law, any or all of the directors may be
removed with or without cause,
<PAGE>
15
by the holders of a majority of the shares then entitled to vote at an election
of directors.
3.7 Compensation. Each director, in consideration of his service as
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
<PAGE>
16
3.9 Annual Meetings. On the day when and at the place where the
annual meeting of stockholders for the election of directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
whenever called by the President or the Secretary or by any two or more
directors. Notice of each special meeting of the Board shall, if mailed, be
addressed to each director at the address designated by him for that
<PAGE>
17
purpose or, if none is designated, at his last known address at least two days
before the date on which the meeting is to be held; or such notice shall be sent
to each director at such address by telegraph, cable, or wireless, or be
delivered to him personally, not later than the day before the date on which
such meeting is to be held. Every such notice shall state the time and place of
the meeting but need not state the purposes of the meeting, except to the extent
required by law. If mailed, each notice shall be deemed given when deposited,
with postage thereon prepaid, in a post office or official depository under the
exclusive care and custody of the United States post office department. Such
mailing shall be by first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
3.13 Waiver of Notice. Whenever notice is required to be given to
any director or member of a committee of directors under any provision of the
General Corporation
<PAGE>
18
Law or of the Certificate of Incorporation or By-laws, a written waiver thereof,
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 is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of any regular or special meeting of the directors, or members of a
committee of directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the President of
the Corporation, or in the absence of the President, a chairman chosen by a
majority of the directors present, shall preside. The Secretary shall act as
secretary at each meeting of the Board. In case the Secretary shall be absent
from any meeting of the Board, an Assistant Secretary shall perform the duties
of secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors
shall constitute a quorum for the
<PAGE>
19
transaction of business or of any specified item of business at any meeting of
the Board.
3.16 Action by the Board. All corporate action taken by the Board or
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, 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
Section 3.16 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at the time of the
vote, if a quorum is present at such time, shall be the act of the Board.
<PAGE>
20
ARTICLE 4
COMMITTEES OF THE BOARD
-----------------------
The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist of one or
more of the directors of the corporation. 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 thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board 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; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation
<PAGE>
21
or a revocation of a dissolution, or amending the By-laws of the Corporation;
and, unless the resolution designating it expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
ARTICLE 5
OFFICERS
--------
5.1 Officers. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint one or more Vice Presidents and such other
officers as it may determine. The Board may designate one or more Vice
Presidents as Executive Vice Presidents, and may use descriptive words or
phrases to designate the standing, seniority or area of special competence of
the Vice Presidents elected or appointed by it. Each officer shall hold his
office until his successor is elected and qualified or until his earlier death,
resignation or removal in the manner provided in Section 5.2 of the By-laws. Any
two or more offices may be held by the same person. The Board may require any
officer to give a bond or other security for the faithful performance of his
duties, in such amount and with such sureties as the Board may determine. All
officers as between themselves and the Corporation shall have such authority and
perform such duties
<PAGE>
22
in the management of the Corporation as may be provided in the By-laws or as the
Board may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the
Board may be removed by the Board with or without cause. The removal of an
officer without cause shall be without prejudice to his contract rights, if any.
The election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying
the Board or the President or the Secretary in writing. Such resignation shall
take effect at the date of receipt of such notice or at such later time as is
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any.
5.4 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in the By-laws for
the regular election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may
be fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or
<PAGE>
23
other compensation by reason of the fact that he is also a director.
5.6 President. The President shall be the chief executive officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, if present, preside at
all meetings of the stockholders and at all meetings of the Board. He may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed; and, in general, he shall perform all duties incident
to the office of President and such other duties as from time to time may be
assigned to him by the Board.
5.7 Vice Presidents. At the request of the President, or, in his
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board or, in the absence of any such designation, in
order of seniority based on age) perform all of the duties of
<PAGE>
24
the President and so acting shall have all the powers of and be subject to all
restrictions upon the President. Any Vice President may also, with the Secretary
or the Treasurer or an Assistant Secretary or an Assistant Treasurer, sign
certificates for shares of capital stock of the Corporation; may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments authorized by the Board, except in cases where the signing and
execution thereof shall be expressly delegated by the Board or by the By-laws to
some other officer or agent of the Corporation, or shall be required by law
otherwise to be signed or executed; and shall perform such other duties as from
time to time may be assigned to him by the Board or by the President.
5.8 Secretary. The Secretary, if present, shall act as secretary of
all meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which on behalf of the Corporation under its
corporate seal
<PAGE>
25
is authorized in accordance with the provisions of the By-laws; he shall have
charge of the stock ledger and also of the other books, records and papers of
the Corporation relating to its organization and management as a Corporation,
and shall see that the reports, statements and other documents required by law
are properly kept and filed; and shall, in general, perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Board or by the President.
5.9 Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the
By-laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation; have the right to require, from time to
<PAGE>
26
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of the
Corporation where such books and records are kept; and, in general, perform all
the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.10 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
<PAGE>
27
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute arid satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 Checks. Drafts. Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
<PAGE>
28
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositaries as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates 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 seal of the Corporation 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 registrar
other than the Corporation itself or its employee. In case any officer, transfer
agent or registrar who has signed or whose facsimile
<PAGE>
29
signature has been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may, unless otherwise ordered by the Board, be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the
<PAGE>
30
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost Destroyed Stolen and Mutilated Certificates. The holder of
any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
<PAGE>
31
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number of stockholders
or
<PAGE>
32
among such stockholders and the Corporation. No restriction so imposed shall be
binding with respect to capital stock issued prior to the adoption of the
restriction unless the holders of such capital stock are parties to an agreement
or voted in favor of the restriction.
7.7 Dividends Surplus. Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such amounts
and at such time or times as, in its discretion, the condition of the
affairs of the Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus
of the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants therefor, in accordance with law,
or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness;
7.7.3 May set aside from time to time out of such surplus or
net profits such sum or sums as, in its discretion, it may think proper,
as a reserve fund to meet contingencies, or for equalizing dividends or
for the purpose of maintaining or increasing the property or business of
the Corporation, or for any purpose it may
<PAGE>
33
think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. 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, by reason of the fact that he
is or was a director or an officer of the Corporation, 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 to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in effect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this Article 8 and the relevant
provisions of the General Corporation Law and other applicable law, if any, are
in effect, and any
<PAGE>
34
repeal or modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may 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 by reason of the fact that he is or
was an 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, 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 to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person
<PAGE>
35
who 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, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of Sections 8.1 and 8.2 of the By-laws or under Section 145 of
the General Corporation Law or any other provision of law.
ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of the stockholders, the Board and any committee of the Board. The Corporation
shall keep at the office designated in the Certificate of Incorporation or at
the office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
<PAGE>
36
9.2 Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware."
<PAGE>
37
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, the President
may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, 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 stock or other securities of such
other corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any such
other corporation and thereat vote or exercise any or all other
<PAGE>
38
powers of the Corporation as the holder of such stock or other securities of
such other corporation.
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or
new By-laws may be adopted, by vote of the holders of the shares entitled to
vote in the election of directors. The By-laws may be altered, amended,
supplemented or repealed, or new By-laws may be adopted, by the Board. Any
By-laws adopted, altered, amended, or supplemented by the Board may be altered,
amended, or supplemented or repealed by the stockholders entitled to vote
thereon.
STATE OF DELAWARE
[SEAL OF THE STATE OF DELAWARE]
Office of Secretary of State
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF PMW DE P.R., INC. FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY
OF APRIL, A.D. 1985, AT 9 O'CLOCK A.M.
/s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 0486558
DATE: 04/29/1985
<PAGE>
FILED
APR 29 1985
/s/ Michael Harkins
Secretary of State
CERTIFICATE OF INCORPORATION
OF
PMW de P.R., Inc.
FIRST: The name of the corporation is PMW de P.R., Inc.
SECOND: The address of its registered office in the State of Delaware is
The Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature or purposes of the business to be conducted or promoted
is:
To engage in any and all lawful acts or activities for which
corporations may be now or hereafter organized under The General
Corporation Law of Delaware.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is one thousand (1,000) shares of Common Stock,
par value One Dollar ($1.00) per share, amounting in the aggregate to One
Thousand Dollars ($1,000.00).
FIFTH: The name and mailing address of the sole incorporator is as
follows:
Carlos A. Saavedra
135 South LaSalle Street
Suite 1425
Chicago, Illinois 60603
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Meetings of the stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such places as may be designated from time to time by the Board
of Directors or in the by-laws of the corporation. Elections of directors need
not be by written ballot unless the by-laws of the corporation shall so provide.
EIGHTH: In furtherance of and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
<PAGE>
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to The General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 26 day of April, 1985.
/s/ Carlos A. Saavedra
----------------------------------
Carlos A. Saavedra
STATE OF ILLINOIS )
) SS
COUNTY OF C00K )
BE IT REMEMBERED that on this 26th day of April, 1985, personally came
before me, a Notary Public for State of Illinois, Carlos A. Saavedra, the party
to the foregoing certificate of incorporation, known to me personally to be
such, and acknowledged the said certificate to be her act and deed and that the
facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Rhonda M. Histerl
--------------------------------
Notary Public
My Commission Expires
12/29/85
RECEIVED FOR RECORD
MAY 3 1985
LEO J. DUGAN, Jr., Recorder
STATE OF DELAWARE
[STATE INSIGNIA]
Office of Secretary of State
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
BEFORE PAYMENT FOR STOCK OF PMW DE P.R., INC. FILED IN THIS OFFICE ON THE
SEVENTH DAY OF MAY, A.D. 1985, AT 9 O'CLOCK A.M.
/s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 0495555
DATE: 05/08/1985
851270074
<PAGE>
FILED
MAY 7 1985
/s/ Michael Harkins
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
BEFORE RECEIPT OF PAYMENT FOR STOCK
OF
CERTIFICATE OF INCORPORATION
OF
PMW de P.R., INC.
PMW de P.R., Inc., a corporation organized and existing under and by
virtue of the laws of the State of Delaware, through its incorporator,
DOES HEREBY CERTIFY:
FIRST: That Article First of the Certificate of Incorporation be amended
in its entirety to read as follows:
"FIRST: The name of the corporation is: PMW Silver de P.R.,
Inc.
SECOND: That this corporation has not received any payment for any of its
stock.
THIRD: That this amendment was duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Carlos A. Saavedra, the sole incorporator of PMW de
P.R., Inc., has signed this Certificate this 6th day of May, 1985
PMW de P.R., Inc.
By /s/ Carlos A. Saavedra
---------------------------
Incorporator
<PAGE>
STATE OF ILLINOIS )
) SS
COUNTY OF C00K )
BE IT REMEMBERED, that on the 6th day of May, 1985, personally came before
me, a Notary Public in and for the County and State aforesaid, Carlos A.
Saavedra, the sole incorporator of PMW de P.R., Inc., a corporation of the State
of Delaware, and duly executed this Certificate before me and acknowledged the
said Certificate to be his act and deed and the act and deed of said corporation
and the facts stated therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of the office the
day and year aforesaid.
/s/ [Signature of Notary]
-----------------------------
Notary Public
April 1, 1989
-----------------------------
Commission expires
RECEIVED FOR RECORD
MAY 13 1985
LEO J. DUGAN, Jr., Recorder
PAGE 1
STATE OF DELAWARE
[STATE INSIGNIA]
[SEAL OF THE STATE OF DELAWARE]
Office of Secretary of State
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF PMW SILVER DE P.R., INC. FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF
OCTOBER, A.D. 1987, AT 9 O'CLOCK A.M.
[SEAL OF THE STATE OF DELAWARE]
/s/ Michael Harkins
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 1540578
DATE: 01/11/1987
<PAGE>
FILED
OCTOBER 28 1987
/s/ Michael Harkins
SECRETARY OF STATE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PMW SILVER DE P.R., INC.
----------
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
PMW Silver de P.R., Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The name of the Corporation is PMW Silver de P.R., Inc.
2. The date of filing of the Certificate of Incorporation of the
Corporation with the Secretary of State was April 29, 1985. The date of the
filing of the Certificate of Amendment before Receipt of Payment for Stock of
the Certificate of Incorporation with the Secretary of State was May 7, 1985.
3. This Certificate of Amendment amends the Certificate of
Incorporation, as now in effect, to change the address of its registered office
in the State of Delaware and to change the name of its registered agent at such
address.
4. Article Second of the Certificate of Incorporation is hereby
amended to read in its entirety as follows:
<PAGE>
2
The address of its registered office in the State of Delaware is 229
South State Street, City of Dover, County of Kent, State of Delaware. The
name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
5. That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has authorized the undersigned
to execute this Certificate of Amendment of the Certificate of Incorporation of
the Corporation this 23rd day of October, 1987.
PMW SILVER DE P.R., INC.
By /s/ Leonard Florence
---------------------------------
Leonard Florence
President
ATTEST:
By /s/ Faye Florence
---------------------------------
Faye Florence
Secretary
BY-LAWS
OF
PMW Silver de P.R., Inc.
ARTICLE I
---------
OFFICES
The registered office of the corporation in the State of Delaware shall be
located at 1209 Orange Street in the City of Wilmington and County of New
Castle. The corporation may have such other offices, either within or without
the State of Delaware, as the business of the corporation may require from time
to time.
The registered office of the corporation required by The General
Corporation Law to be maintained in the State of Delaware may be, but need not
be, identical with the principal office in the State of Delaware, and the
address of the registered office may be changed from time to time by the board
of directors.
ARTICLE II
----------
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall be
held on the first Tuesday in November in each year, beginning with the year
1985, at the hour of 10:00 a.m., for the purpose of electing directors and for
the transaction of such other business as may come before the meeting. If the
day fixed for the annual meeting shall be a legal holiday, such meeting shall be
held on the next succeeding business day. If the election of directors shall not
be held on the day designated herein for any annual meeting, or at any
adjournment thereof, the board of directors shall cause the election to be held
at a meeting of the shareholders as soon thereafter as convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the president, by the board of directors or by the holder(s) of not
less than one-fifth of all the outstanding shares of the corporation. Business
transacted at the meeting shall be limited to the purposes stated in the notice
of the special meeting.
SECTION 3. PLACE OF MEETING. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting of the shareholders called by
the board of directors. A waiver of notice signed by all shareholders may
<PAGE>
designate any place, either within or without the State of Delaware, as the
place for the holding of the meeting referred to in such waiver of notice. If no
designation is made, or if a special meeting shall be otherwise called, the
place of meeting shall be the registered office of the corporation in the State
of Delaware, except as otherwise provided in Section 5 of this article.
SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting, and in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than sixty days before the date of the meeting, or in the case
of a merger or consolidation not less than twenty nor more than forty days
before the meeting, either personally or by mail, by or at the direction of the
president, or the secretary, or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail,
postage prepaid, addressed to the shareholder at his address as it appears on
the records of the corporation.
SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall
meet at any time and place, either within or without the State of Delaware, and
consent to the holding of a meeting at such time and place, such meeting shall
be valid without call or notice, and at such meeting any corporate action may be
taken.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may provide that the
stock transfer books shall be closed for a stated period but not to exceed, in
any case, forty days. If the stock transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days, or in
the case of a merger or consolidation, at least twenty days, immediately
preceding such meeting. In lieu of closing the stock transfer books, the board
of directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than sixty
days and, for a meeting of shareholders, not less than ten days, or in the case
of a merger or consolidation not less than twenty days, immediately preceding
such meeting. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, the record date shall be at the close of business on
the day next preceding the date on which notice of
-2-
<PAGE>
the meeting 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. The record date for
determining shareholders entitled to express consent to corporate action in
writing without a meeting, when no prior board action is necessary, shall be the
date on which the first written consent of shareholders is expressed. The date
for determining shareholders for any other purpose shall be at the close of
business on the date on which the board of directors adopts the resolutions
relating thereto.
SECTION 7. VOTING LISTS. The officer or agent having charge of the
transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each. Such list, for a period of ten
days prior to such meeting, shall be kept on file at a place within the city
where the meeting is to be held, as specified in notice of the meeting, or if no
such specification, at the place where the meeting will be held and shall be
subject to inspection by any shareholder for any purpose germane to the meeting
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The original
share ledger or transfer book, or a duplicate thereof kept in this State, shall
be prima facie evidence as to who are the shareholders entitled to examine such
list, share ledger or transfer book or to vote at any meeting of shareholders.
SECTION 8. QUORUM. The holders of a majority of the issued and outstanding
shares of the corporation, represented in person or by proxy, shall constitute a
quorum at any meeting of shareholders; provided, that if less than a majority of
the outstanding shares are represented at said meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further notice.
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 and if such
adjourned meeting takes place within 30 days of the original meeting. If a
quorum is present, the affirmative vote of the majority of the shares actually
cast at the meeting shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by The General Corporation Law,
the certificate of incorporation or these by-laws.
SECTION 9. PROXIES. Each stockholder entitled to vote at a meeting 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. Such proxy shall be
filed with the secretary of the corporation before or at the time of the
-3-
<PAGE>
meeting. No proxy shall be valid after three years from the date of its
execution, unless expressly otherwise provided in the proxy.
SECTION 10. VOTING OF SHARES. Each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine.
Shares standing in the name of a deceased person, a minor ward or an
incompetent person, may be voted by his administrator, executor, court appointed
guardian or conservator, either in person or by proxy without a transfer of such
shares into the name of such administrator, executor, court appointed guardian
or conservator. Shares standing in the name of a trustee may be voted by such
trustee, either in person or by proxy.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do is
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer by the pledgor on the books of the corporation he
has expressly empowered the pledgee to vote thereon, in which case the pledgee
shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by it in a judiciary capacity may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote at any given
time.
SECTION 12. INSPECTORS. At any meeting of shareholders, the chairman of
the meeting may, or upon the request of any shareholder shall, appoint one or
more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares
represented at the meeting based upon their determination
-4-
<PAGE>
of the validity and effect of proxies; count all votes and report the results;
and do such other acts as are proper to conduct the election and voting with
impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there be more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
SECTION 13. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting and without
prior notice thereof if a consent in writing, setting forth the action so taken,
shall be signed by all of the shareholders 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. Prompt notice of the taking of corporate action without a
meeting by less than unanimous consent shall be given to those stockholders who
have not consented in writing.
SECTION 14. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
-----------
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by or under the direction of its board of directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of
the corporation shall be four. Each director shall hold office until the next
annual meeting of the shareholders and until his successor shall have been
elected and qualified or until his earlier resignation or removal. Directors
need not be residents of Delaware or shareholders of the corporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors
shall be held without other notice than this by-law, immediately after, and at
the same place as, the annual meeting of shareholders. The board of directors
may provide by resolution the time and place, either within or without the State
-5-
<PAGE>
of Delaware, for the holding of additional regular meetings without other notice
than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the president or any two directors. The
person or persons authorized to call special meetings of the board of directors
may fix any place, either within or without the State of Delaware, as the place
for holding any special meeting of the board of directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at least
ten days previous thereto by written notice delivered personally or mailed to
each director at his business address, or by telegram. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any director may waive notice of any meeting. The attendance
of a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose,
stated at the beginning of the meeting, of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by these
by-laws shall constitute a quorum or transaction of business at any meeting of
the board of directors, provided that if less than a majority of such number of
directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
SECTION 7. MANNER OF ACTING. The vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
SECTION 8. VACANCIES. Any vacancy occurring in the board of directors and
any new directorship to be filled by reason of an increase in the number of
directors, may be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose or by a majority of directors
then in office, although less than a quorum, or by a sole remaining director.
SECTION 9. REMOVAL. Any director may be removed by the vote of the holders
of a majority of the shares then entitled to vote at an election of directors
whenever in their judgment the best interests of the corporation will be served
thereby.
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<PAGE>
SECTION 10. INFORMAL ACTION BY DIRECTORS. Any action required to be taken
at a meeting of the board of directors, or any other action which may be taken
at a meeting of the board of directors or any committee thereof, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the directors, or by all the members of such committee,
as the case may be. Any such consent signed by all the directors or all the
members of any such committee shall have the same effect as a unanimous vote,
and may be stated as such in any document filed with the Secretary of State.
SECTION 11. COMPENSATION. The board of directors, by the affirmative vote
of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise. By resolution of the board of directors the directors may
be paid their expenses, if any, of attendance at each meeting of the board.
SECTION 12. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any matter is
taken shall be conclusively presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of the corporation within two days after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
SECTION 13. TELEPHONIC MEETINGS. Members of the board of directors or any
committee thereof may participate in a meeting of such board or committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in such meeting can hear each other.
Participation in a meeting pursuant to this section shall constitute presence in
person at the meeting.
ARTICLE IV
----------
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall be a president,
one or more vice presidents (the number thereof to be determined by the board of
directors), a treasurer, a secretary and such assistant treasurers, assistant
secretaries or other officers as may he elected or appointed by the board of
directors. Any two or more offices may be held by the same person, except the
offices of president and secretary.
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<PAGE>
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as convenient. Vacancies may be filled or new offices
filled at any meeting of the board of directors. Each officer shall hold office
until the next annual meeting of the board of directors or until his successor
shall have been elected and qualified or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Election
or appointment of an officer or agent shall not of itself create contract
rights.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the board
of directors for the unexpired portion of the term.
SECTION 5. PRESIDENT. The president shall be the principal executive
officer of the corporation and in general shall supervise and control all of the
business and affairs of the corporation. He shall preside at all meetings of the
shareholders and of the board of directors. He may sign, with the secretary, an
assistant secretary or any other proper officer of the corporation thereunto
authorized by the board of directors, certificates for shares of the
corporation, any deeds, mortgages, bonds, contracts or other instruments which
the board of directors has authorized to be executed, except in cases where the
signing and execution 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
he shall perform all duties incident to the office of president and such other
duties as may be prescribed by the board of directors from time to time.
SECTION 6. THE VICE PRESIDENT. In the absence of the president or in the
event of his inability or refusal to act, the vice president (or in the event
there be more than one vice president, the vice presidents in the order
designated or in the absence of any designation, then in the order of their
election) shall perform the duties of the presidents, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. Any vice president may sign, with the secretary or an assistant
secretary, certificates for
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<PAGE>
shares of the corporation; and shall perform such other duties as from time to
time may be assigned to him by the president or by the board of directors.
SECTION 7. THE TREASURER. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; receive
and give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Article V of these by-laws; (b) in general perform all
the duties as from time to time may be assigned to him by the president or by
the board of directors. If required by the board of directors, the treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the board of directors shall determine.
SECTION 8. THE SECRETARY. The secretary shall: (a) keep the minutes of the
shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these by-laws; (d) keep a register of the post-office address of each
shareholder as furnished to the secretary by such shareholder; (e) sign with the
president or a vice president certificates for shares of the corporation, the
issue of which shall have been authorized by resolution of the board of
directors; (f) have general charge of the stock transfer books of the
corporation; (g) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
SECTION 9. SALARIES. The salaries of the officers shall be fixed from time
to time by the board or directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
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<PAGE>
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the board of directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as the board of directors may
select.
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. 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 president or a vice
president and by the secretary or an assistant secretary and shall be sealed
with the seal of the corporation. All certificates for shares shall be
consecutively numbered or otherwise identified. The name of the person to whom
the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the corporation. All certificates
surrendered to the corporation for transfer shall be canceled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms and indemnity to the corporation as the board of directors may prescribe
in accordance with the General Corporation Law of Delaware.
SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation
shall be made only on the books of the corporation by the holder of record
thereof or his legal representative, who shall furnish proper authority to
transfer, or his attorney thereunto authorized by power of attorney duly
executed and filed with the secretary of the corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name shares
stand on the books of the corporation shall be deemed the owner thereof for all
purposes as regards the corporation.
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<PAGE>
ARTICLE VII
-----------
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of January
in each year and end on the last day of December in each year.
ARTICLE VIII
------------
DIVIDENDS
The board of directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares in the manner and subject to the
terms and conditions provided by law and the certificate of incorporation.
ARTICLE IX
----------
SEAL
The board of directors shall provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words, "Corporate Seal, Delaware".
ARTICLE X
---------
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the provisions
of these by-laws, the certificate of incorporation or The General Corporation
Law of the State of Delaware, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XI
----------
AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be
adopted at any meeting of the board of directors of the corporation by a
majority vote of the directors present at the meeting.
ARTICLE XII
-----------
INDEMNIFICATION
SECTION 1. LIMITED INDEMNIFICATION OF DIRECTORS AND OFFICERS. Subject to
the limitations of subsection (c) of this Section 1, the corporation may
indemnify each of its directors
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<PAGE>
and officers to the extent set forth in subsections (a) and (b) hereof:
(a) Action or Suit by or in the Right of the Corporation. Each director
and officer of the corporation who was or is a party, or is threatened to be
made a party,
(i) to any threatened, pending or completed action or suit, by or in
the right of the corporation, to procure a judgment in its favor,
(ii) 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,
may be indemnified against expenses (including attorney's 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 he in, or not opposed to, the best interests of the corporation; provided
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, the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability, in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
(b) Action or Suit Other Than by or in the Right of the Corporation. Each
director or officer of the corporation who was or is a party, or is threatened
to be made a party,
(i) to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action or suit by or in the right of the corporation),
(ii) 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,
may be indemnified against expenses {including attorney's 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
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<PAGE>
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; and 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 director or officer
(i) 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
(ii) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(c) Limitations of Indemnification. No indemnification shall be made by
the corporation under subsections (a) and (b) of this Section 1 unless ordered
by a court or it is determined in the specific case that indemnification of such
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) or (b) hereof. Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to the action, suit or
proceeding referred to, or (2) if such a quorum is not obtainable, or even if
obtainable, when a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the shareholders.
SECTION 2. GENERAL INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any other
provision of this Article XII to the contrary notwithstanding, to the extent
that a director or officer of the corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) or (b) of Section 1, or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorney's
fees) actually and reasonably incurred by him in connection therewith.
SECTION 3. ADVANCE PAYMENT IN INDEMNIFICATION CASES. If authorized by the
board of directors in any specific case, expenses incurred by any director of
officer of the corporation in defending a civil or criminal action, suit or
proceeding referred to in subsections (a) and (b) of Section 1 may be paid by
the corporation in advance of final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Article XII.
SECTION 4. CONTINUITY AND NONEXCLUSIVITY OF INDEMNIFICATION. This
indemnification provided by this Article XII shall continue
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<PAGE>
with respect to any director or officer of the corporation after he has ceased
to hold his office and shall inure to the benefit of his heirs, executors and
administrators. Any such indemnification (whether as expressly provided herein
or as extended pursuant to Section 5 of this Article XII) shall not be deemed
exclusive of any other rights to which the person seeking indemnification may be
entitled under any other By-Law, agreement, vote of shareholders or
disinterested directors or otherwise.
SECTION 5. EXTENSION OF BENEFITS OF INDEMNIFICATION. The rights of
indemnification to which directors and officers of the corporation are entitled
pursuant to this Article XII may, in similar circumstances, be extended by
resolution of the Board of Directors to any other person who is or was an
employee or agent of the corporation, or while not a director or officer of the
corporation, 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. Any such action by the Board of Directors shall be
consistent with the requirements of the General Corporation Law of the State of
Delaware and may be either general or confined to specific cases.
SECTION 6. INDEMNIFICATION INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who 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,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation indemnifies him against such
liability under, or pursuant to, the provisions of this Article XII.
-14-
STATE OF DELAWARE
[STATE INSIGNIA]
Office of Secretary of State
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF NEWBURYPORT ACQUISITION CORP. FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF JUNE, A.D. 1990, AT 2 O'CLOCK P.M.
| | | | | | | | | | |
[SEAL] /s/ Michael Harkins
750177013 -----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: |2704495
DATE: 06/26/1990
<PAGE>
CERTIFICATE OF INCORPORATION
of
NEWBURYPORT ACQUISITION CORP.
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of the State of De1aware, certifies as follows:
1. Name. The name of the corporation is NEWBURYPORT ACQUISITION CORP.
2. Address; Registered Agent. The address of the Corporation's registered
office is 32 Loockerman Square, Suite L-100, City of Dover 19901, County of
Kent, State of Delaware; and its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
3. Purposes. The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. Number of Shares. The total number of shares of stock which the
Corporation shall have authority to issue is: Sixty Thousand (60,000) of which
Fifty Thousand (50,000) shall be shares of Preferred Stock of the par value of
One Dollar ($1.00) each and Ten Thousand (10,000) shall
<PAGE>
2
be shares of Common Stock of the par value of Ten Cents ($0.10) each.
5. Designation of Classes; Relative Rights, etc. The designation, relative
rights, preferences and limitations of the shares of each class are as follows:
The shares of Preferred Stock may be issued from time to time in one or
more series of any number of shares, provided that the aggregate number of
shares issued and not cancelled of any and all such series shall not exceed the
total number of shares of Preferred Stock hereinabove authorized, and with
distinctive serial designations, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such share of
Preferred Stock from time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of Directors. Each series
of shares of Preferred Stock (a) may have such voting powers, full or limited,
or may be without voting powers; (b) may be subject to redemption at such time
or times and at such prices; (c) may be entitled to receive dividends (which may
be cumulative or non-cumulative) at such rate or rates, on such conditions and
at such times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of stock; (d) may have
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; (e) may be made convertible
<PAGE>
3
into or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes or shares of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; (f)
may be entitled to the benefit of a sinking fund to be applied to the purchase
or redemption of shares of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any Subsidiary, upon the issue of any
additional share (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding shares of the Corporation and (h) may have such
other relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof; all as shall be stated in said resolution
or resolutions providing for the issue of such shares of Preferred Stock. Shares
of Preferred Stock of any series which have been redeemed (whether through the
operation of a sinking fund or otherwise) or which, if convertible or
exchangeable, have been converted into or exchanged for shares of any other
class or classes shall have the status of authorized and unissued shares of
Preferred Stock of the same series and may be reissued as a part of the series
of
<PAGE>
4
which they were originally a part or may be reclassified and reissued as part of
a new series of shares of Preferred Stock to be created by resolution or
resolutions of the Board of Directors or as part of any other series of shares
of Preferred Stock, all subject to the conditions or restrictions on issuance
set forth in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of shares of Preferred Stock.
Subject to the provisions of any applicable law, or of the By-laws of the
Corporation as from time to time amended, with respect to the closing of the
transfer books or the fixing of a record date for the determination of
shareholders entitled to vote and except as otherwise provided by law or by the
resolution or resolutions providing for the issue of any series of shares of
Preferred Stock, the holders of outstanding shares of Common Stock shall
exclusively possess voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock being entitled to one
vote for each share of Common Stock standing in his name on the books of the
Corporation. Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of shares of Preferred Stock, the holders
of shares of Common Stock shall be entitled, to the exclusion of the holders of
shares of Preferred Stock of any and all series, to receive such dividends as
from time to time may be
<PAGE>
5
declared by the Board of Directors. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, after
payment shall have been made to the holders of shares of Preferred Stock of the
full amount for which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of shares of Preferred Stock,
the holders of shares of Common Stock shall be entitled, to the exclusion of the
holders of shares of Preferred Stock of any and all series, to share, ratably
according to the number of shares of Common Stock held by them, in all remaining
assets of the Corporation available for distribution to its shareholders.
Subject to the provisions of this Certificate of Incorporation and except
as otherwise provided by law, the stock of the Corporation, regardless of class,
may be issued for such consideration and for such corporate purposes as the
Board of Directors may from time to time determine.
6. Name and Address of Incorporator. The name and mailing address of the
incorporator are: James L. Purcell, 1285 Avenue of the Americas, New York, New
York 10019-6064.
7. Election of Directors. Members of the Board of Directors may be elected
either by written ballot or by voice vote.
<PAGE>
6
8. Limitation of Liability. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefits.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
9. Indemnification.
9.1 The Corporation shall, to the extent not prohibited by law,
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed, action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation to procure a judgment in its favor (hereinafter a
"Proceeding"), by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of the
Corporation, or is or was serving in
<PAGE>
7
any capacity at the request of the Corporation for any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against judgments, fines, penalties, excise taxes, amounts paid in settlement
and costs, charges and expenses (including attorneys' fees and disbursements).
Persons who are not directors or officers of the Corporation may be similarly
indemnified in respect of service to the Corporation or to another such entity
at the request of the Corporation to the extent the Board of Directors at any
time denominates such persons entitled to the benefits of this Section 9.
9.2 The Corporation shall, from time to time, reimburse or advance
to any director or officer or other person entitled to indemnification hereunder
the funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding, provided, however, that, if required by
the Delaware General Corporation Law, such expenses incurred by or on behalf or
any director or officer or other person may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such
<PAGE>
8
director, officer or other person is not entitled to be indemnified for such
expenses.
9.3 The right to indemnification and reimbursement or advancement of
expenses provided by, or granted pursuant to, this Section 9 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
9.4 The right to indemnification and reimbursement or advancement of
expenses provided by, or granted pursuant to, this Section 9 shall continue as
to a person who has ceased to be a director or officer (or other person
indemnified hereunder) and shall inure to the benefit of the heirs, executors
and administrators of such person.
9.5 The Corporation shall have power to purchase and maintain
insurance on behalf of any person who 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, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's
<PAGE>
9
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Section 9, the
By-laws of the Corporation or under Section 145 of the Delaware General
Corporation Law or any other provision of law.
9.6 The provisions of this Section 8 shall be a contract between the
Corporation, on the one hand, and each director and officer who serves in such
capacity at any time while this Section 9 is in effect and any other person
indemnified hereunder, on the other hand, pursuant to which the Corporation and
each such director, officer, or other person intend to be legally bound. No
repeal or modification or this Section 9 shall affect any rights or obligations
then existing or thereafter arising with respect to any state of facts then or
theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
9.7 The right to indemnification and reimbursement or advancement or
expenses provided by, or granted pursuant to, this Section 9 shall be
enforceable by any person entitled to such indemnification or reimbursement or
advancement of expenses in any court of competent jurisdiction. The burden of
proving that such indemnification or reimbursement or advancement of expenses
are not appropriate shall be on the Corporation. Neither the failure of the
<PAGE>
10
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that such person is not entitled to such indemnification or
reimbursement or advancement of expenses, shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such person
shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
9.8 Any director or officer of the Corporation serving (1) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the Corporation, or (2) any employee benefit plan of
the Corporation or any corporation referred to in clause (1), in any capacity,
shall be deemed to be doing so at the request of the Corporation.
9.9 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this section 9 may
elect to have the right to indemnification or reimbursement or advancement of
<PAGE>
11
expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; provided that if no such notice is given, the right to indemnification
or reimbursement or advancement of expenses shall be determined by the law in
effect at the time indemnification or reimbursement or advancement of expenses
is sought.
10. Adoption, Amendment and/or Repeal of By-Laws. The Board of Directors
may from time to time (after adoption by the undersigned of the original
by-laws of the Corporation) make, alter or repeal the by-laws of the
Corporation; provided, that any by-laws made, amended or repealed by the Board
of Directors may be amended or repealed, and any by-laws may be made, by the
stockholders of the Corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this 25th day of
June, 1990.
/s/ James L. Purcell
-----------------------
James L. Purcell
Incorporator
PAGE 1 18032
STATE OF DELAWARE
[STATE INSIGNIA]
Office of Secretary of State
-----------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF NEWBURYPORT ACQUISITION CORP. FILED IN THIS OFFICE ON THE
SIXTEENTH DAY OF AUGUST, A.D. 1990, AT 1 O'CLOCK P.M.
| | | | | | | | |
RECEIVED FOR RECORD
Aug, 17, A.D. 1990
Michael T. Scuse
RECORDER
$3.00 STATE DOCUMENT FEE PAID
[SEAL] /s/ Michael Harkins
750228056 -----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: |2763816
DATE: 08/16/1990
<PAGE>
FILED
AUG 16 1990
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NEWBURYPORT ACQUISITION CORP.
Newburyport Acquisition Corp. (the "Corporation"), a corporation
organized and existing under and by virtue of the Delaware General Corporation
Law (the "GCL"), DOES HEREBY CERTIFY as follows:
FIRST: The sole director of the Corporation, by written consent,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of the Corporation:
RESOLVED: that the sole director hereby deems it advisable and in
the best interests of the Corporation that the Certificate of
Incorporation of the Corporation be amended to change the name of the
Corporation from NEWBURYPORT ACQUISITION CORP. to TOWLE MANUFACTURING
COMPANY by changing Section 1 thereof so that, as amended, said Section
shall be and read as follows:
"1. Name. The name of the corporation is TOWLE MANUFACTURING
COMPANY."
SECOND: That the sole stockholder of the Corporation has given
written consent to said amendment in accordance with the provisions of Section
228 of the GCL.
<PAGE>
2
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the GCL.
IN WITNESS WHEREOF, we have signed this Certificate as of August 16,
1990.
/s/ E. Merle Randolph
---------------------
E. Merle Randolph
Vice President
ATTEST:
/s/ James L. Purcell
- ----------------------
James L. Purcell
Assistant Secretary
BY-LAWS
OF
TOWLE MANUFACTURING COMPANY
(A Delaware Corporation)
---------------
ARTICLE 1
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means Newburyport Acquisition Corp.
1.7 "Directors" means directors of the Corporation.
<PAGE>
2
l.8 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.2 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the Corporation.
<PAGE>
3
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held at the
office of the Corporation or at such other place within or without the State of
Delaware as shall be specified or fixed in the notice of such meeting or in the
waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually for
the election of directors and the transaction of other business at such hour and
on such business day in Nay or June as may be determined by the Board and
designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual meeting
of stockholders for the election of directors and the transaction of other
business is not held within the months specified in Section 2.2, the Board shall
call a meeting of stockholders for the election of directors and the transaction
of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other than
a special meeting for the election
<PAGE>
4
of directors), unless othewise prescribed by statute, may be called at any
time by the Board or by the President or by the Secretary. At any special
meeting of stockholders only such business may be transacted as is related to
the purpose or purposes of such meeting set forth in the notice thereof given
pursuant to Section 2.6 of the By-laws or in any waiver of notice thereof given
pursuant to Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders 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
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date 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. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the
<PAGE>
5
day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the next preceding the day on which
the meeting is held;
2.5.2 The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the
first written consent is expressed;
2.5.3 The record date for determining stockholders for any purpose
other than those specified in Sections 2.5.1 and 2.5.2 shall be at the
close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation Law
or the Certificate of Incorporation or the By-laws, stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or
<PAGE>
6
purposes for which the meeting is called. A copy of the notice of any meeting
shall be given, personally or by mail, not less than ten nor more than sixty
days before the date of the meeting, to each stockholder entitled to notice of
or to vote at such meeting. If mailed, such notice shall be deemed to be given
when deposited in the United States mail, with postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation. An
affidavit of the Secretary or an Assistant Secretary or of the 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 stated therein.
When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, the adjournment is for more than thirty 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 at the meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to any
stockholder under any provision of the General Corporation Law or the
Certificate of
<PAGE>
7
Incorporation or the 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. Attendance of a stockholder at a meeting
shall constitute a waiver of notice of such meeting, except when the stockholder
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. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or cause
to be prepared and made, at least ten days before every meeting of stockholders,
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 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.
<PAGE>
8
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 stockholder who is
present.
2.9 Quorum of Stockholders; Adjournment. The holders of one-third of the
shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in person
or represented by proxy at any meeting of stockholders, including an adjourned
meeting, whether or not a quorum is present, may adjourn such meeting to another
time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every stockholder of record shall be entitled at every meeting of
stockholders to one vote for each share of capital stock standing in his name on
the record of stockholders determined in accordance with Section 2.5 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes
<PAGE>
9
of such stock. The provisions of Sections 212 and 217 of the General Corporation
Law shall apply in determining whether any shares of capital stock may be voted
and the persons, if any, entitled to vote such shares; but the Corporation shall
be protected in treating the persons in whose names shares of capital stock
stand on the record of stockholders as owners thereof for all purposes. At any
meeting of stockholders (at which a quorum was present to organize the meeting),
all matters, except as otherwise provided by law or by the Certificate of
Incorporation or by the By-laws, shall be decided by a majority of the votes
cast at such meeting by the holders of shares present in person or represented
by proxy and entitled to vote thereon, whether or not a quorum is present when
the vote is taken. All elections of directors shall be by written ballot unless
otherwise provided in the Certificate of Incorporation. In voting on any other
question on which a vote by ballot is required by law or is demanded by any
stockholder entitled to vote, the voting shall be by ballot. Each ballot shall
be signed by the stockholder voting or by his proxy, and shall state the number
of shares voted. On all other questions, the voting may be viva voce. Every
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. The
<PAGE>
10
validity and enforceability of any proxy shall be determined in accordance with
Section 212 of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders. The
Board, in advance of any meeting of stockholders, 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 such meeting may, and on the request
of any stockholder 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 in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, 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 inspector or inspectors shall determine the
number of shares outstanding and the voting power of each, the 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
<PAGE>
11
fairness to all stockholders. On request of the person presiding at the meeting
or any stockholder entitled to vote thereat, the inspector or inspectors shall
make a report in writing of any challenge, question or matter determined by him
or them and execute a certificate of any fact found by him or them. Any report
or certificate made by the inspector or inspectors shall be prima facie evidence
of the facts stated and of the vote as certified by him or them.
2.12 Organization. At every meeting of stockholders, the President, or in
the absence of the President a Vice President, and in case more than one Vice
President shall be present, that Vice President designated by the Board (or in
the absence of any such designation, the most senior Vice President, based on
age, present) , shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
stockholders shall be as determined by the
<PAGE>
12
chairman of the meeting, but the order of business to be followed at any meeting
at which a quorum is present may be changed by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by the General
Corporation Law 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 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. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
<PAGE>
13
ARTICLE 3
DIRECTORS
---------
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by the By-laws or the Certificate of
Incorporation or by law, to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of one
or more members. The total number of directors shall be fixed initially by the
incorporator and may thereafter be changed from time to time by action of the
stockholders or by action of the Board. Directors need not be stockholders. Each
director shall hold office until his successor is elected and qualified or until
his earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law or by
the Certificate of Incorporation, be elected by a plurality of the votes cast at
a meeting of
<PAGE>
14
stockholders by the holders of shares entitled to vote in the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided
in the Certificate of Incorporation, newly created directorships resulting from
an increase in the number of directors and vacancies occurring in the Board for
any other reason, including the removal of directors without cause, may be
filled by vote of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director, or may be elected by a plurality of
the votes cast by the holders of shares of capital stock entitled to vote in the
election at a special meeting of stockholders called for that purpose. A
director elected to fill a vacancy shall be elected to hold office until his
successor is elected and qualified, or until his earlier death, resignation or
removal.
3.5 Resignations. Any director may resign at any time by written notice to
the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section 141(k) of
the General Corporation Law, any or all of the directors may be removed with or
without cause,
<PAGE>
15
by the holders of a majority of the shares then entitled to vote at an election
of directors.
3.7 Compensation. Each director, in consideration of his service as such,
shall be entitled to receive from the Corporation such amount per annum or such
fees for attendance at directors' meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Place and Time of Meeting of the Board. Meetings of the Board, regular
or special, may be held at any place within or without the State of Delaware.
The times and places for holding meetings of the Board may be fixed from time to
time by resolution of the Board or (unless contrary to resolution of the Board)
in the notice of the meeting.
<PAGE>
16
3.9 Annual Meeting. On the day when and at the place where the annual
meeting of stockholders for the election of directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held at
any other time and place specified in a notice given as provided in Section 3.11
of the By-laws for special meetings of the Board or in a waiver of notice
thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at such
times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
whenever called by the President or the Secretary or by any two or more
directors. Notice of each special meeting of the Board shall, if mailed, be
addressed to each director at the address designated by him for that
<PAGE>
17
purpose or, if none is designated, at his last known address at least two days
before the date on which the meeting is to be held; or such notice shall be sent
to each director at such address by telegraph, cable, or wireless, or be
delivered to him personally, not later than the day before the date on which
such meeting is to be held. Every such notice shall state the time and place of
the meeting but need not state the purposes of the meeting, except to the extent
required by law. If mailed, each notice shall be deemed given when deposited,
with postage thereon prepaid, in a post office or official depository under the
exclusive care and custody of the United States post office department. Such
mailing shall be by first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
3.13 Waiver of Notice. Whenever notice is required to be given to any
director or member of a committee of directors under any provision of the
General Corporation
<PAGE>
18
Law or of the Certificate of Incorporation or By-laws, a written waiver thereof,
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 is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the directors, or members of a
committee of directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the President of the
Corporation, or in the absence of the President, a chairman chosen by a majority
of the directors present, shall preside. The Secretary shall act as secretary'
at each meeting of the Board. In case the Secretary shall be absent from any
meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors shall
constitute a quorum for the
<PAGE>
19
transaction of business or of any specified item of business at any meeting of
the Board.
3.16 Action by the Board. All corporate action taken by the Board or any
committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, 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
Section 3.16 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at the time of the
vote, if a quorum is present at such time, shall be the act of the Board.
<PAGE>
20
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the corporation. 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 thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board 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;
but no such committee shall have the power or authority in reference to amending
the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation
<PAGE>
21
or a revocation of a dissolution, or amending the By-laws of the Corporation;
and, unless the resolution designating it expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
ARTICLE 5
OFFICERS
5.1 Officers. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint one or more Vice Presidents and such other
officers as it may determine. The Board may designate one or more Vice
Presidents as Executive Vice Presidents, and may use descriptive words or
phrases to designate the standing, seniority or area of special competence of
the Vice Presidents elected or appointed by it. Each officer shall hold his
office until his successor is elected and qualified or until his earlier death,
resignation or removal in the manner provided in Section 5.2 of the By-laws. Any
two or more offices may be held by the same person. The Board may require any
officer to give a bond or other security for the faithful performance of his
duties, in such amount and with such sureties as the Board may determine. All
officers as between themselves and the Corporation shall have such authority and
perform such duties
<PAGE>
22
in the management of the Corporation as may be provided in the By-laws or as the
Board may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the Board may
be removed by the Board with or without cause. The removal of an officer without
cause shall be without prejudice to his contract rights, if any. The election or
appointment of an officer shall not of itself create contract rights.
5.3 Resignations. Any officer may resign at any time by so notifying the
Board or the President or the Secretary in writing. Such resignation shall take
effect at the date of receipt of such notice or at such later time as is therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective. The resignation of an officer shall
be without prejudice to the contract rights of the Corporation if any.
5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the By-laws for the regular
election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or
<PAGE>
23
other compensation by reason of the fact that he is also a director.
5.6 President. The President shall be the Chief Executive Officer of the
Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, if present, preside at
all meetings of the stockholders and at all meetings of the Board. He may, with
the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer, sign certificates for shares of capital stock of the Corporation. He
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws to some
other officer or agent of the Corporation, or shall be required by law otherwise
to be signed or executed; and, in general, he shall perform all duties incident
to the office of President and such other duties as from time to time may be
assigned to him by the Board.
5.7 Vice Presidents At the request of the President, or, in his absence,
at the request of the Board, the Vice Presidents shall (in such order as may be
designated by the Board or, in the absence of any such designation, in order of
seniority based on age) perform all of the duties of
<PAGE>
24
the President and so acting shall have all the powers of and be subject to all
restrictions upon the President. Any Vice President may also, with the Secretary
or the Treasurer or an Assistant Secretary or an Assistant Treasurer, sign
certificates for shares of capital stock of the Corporation; may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments authorized by the Board, except in cases where the signing and
execution thereof shall be expressly delegated by the Board or by the By-laws to
some other officer or agent of the Corporation, or shall be required by law
otherwise to be signed or executed; and shall perform such other duties as from
time to time may be assigned to him by the Board or by the President.
5.8 Secretary. The Secretary, if present, shall act as secretary of all
meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which on behalf of the Corporation under its
corporate seal
<PAGE>
25
is authorized in accordance with the provisions of the By-laws; he shall have
charge of the stock ledger and also of the other books, records and papers of
the Corporation relating to its organization and management as a Corporation,
and shall see that the reports, statements and other documents required by law
are properly kept and filed; and shall, in general, perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Board or by the President.
5.9 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the
By-laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation; have the right to require, from time to
<PAGE>
26
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of the
Corporation where such books and records are kept; and, in general, perform all
the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.10 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries
and Assistant Treasurers shall perform such duties as shall be assigned to them
by the Secretary or by the Treasurer, respectively, or by the Board or by the
President. Assistant Secretaries and Assistant Treasurers may, with the
President or a Vice President, sign certificates for shares of capital stock of
the Corporation.
<PAGE>
27
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS. ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer, employee
or agent, in the name and on behalf of the Corporation, to enter into any
contract or execute and satisfy any instrument, and any such authority may be
general or confined to specific instances, or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
<PAGE>
28
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed shall be
deposited from time to time to the order of the Corporation in such banks, trust
companies or other depositaries as the Board may select or as may be selected by
an officer, employee or agent of the Corporation to whom such power may from
time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of the
Corporation shall be represented by certificates in such form (consistent with
the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates 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 seal of the Corporation 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 registrar
other than the Corporation itself or its employee. In case any officer, transfer
agent or registrar who has signed or whose facsimile
<PAGE>
29
signature has been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may, unless otherwise ordered by the Board, be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the
<PAGE>
30
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of any
shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
<PAGE>
31
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number of stockholders
or
<PAGE>
32
among such stockholders and the Corporation. No restriction so imposed shall be
binding with respect to capital stock issued prior to the adoption of the
restriction unless the holders of such capital stock are parties to an agreement
or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate
of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other distributions on
the outstanding shares of capital stock in such amounts and at such time
or times as, in its discretion, the condition of the affairs of the
Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of
the Corporation in purchasing or acquiring any shares of capital stock of
the Corporation, or purchase warrants therefor, in accordance with law, or
any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper, as a
reserve fund to meet contingencies, or for equalizing dividends or for the
purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may
<PAGE>
33
think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. The Corporation shall, to
the extent not prohibited by law, indemnify any person who is or was made, or
threatened to be made, a party to any threatened, pending or completed, action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation to procure a judgment
in its favor (hereinafter a "Proceeding") , by reason of the fact that such
person, or a person of whom such person is the legal representative, is or was a
director or officer of the Corporation, or is or was serving in any capacity at
the request of the Corporation for any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against judgments,
fines, penalties, excise taxes, amounts paid in settlement and costs, charges
and expenses (including attorneys' fees and disbursements). Persons who are not
directors or officers of the Corporation may be similarly indemnified in respect
of service to the Corporation or to another such entity at the request of the
<PAGE>
34
Corporation to the extent the Board of Directors at any time denominates such
person as entitled to the benefits of this Section 8.
8.2 Advances. The Corporation shall, from time to time, reimburse or
advance to any director or officer entitled to indemnification hereunder the
funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding, provided, however, that, if required by
the Delaware General Corporation Law, such expenses incurred by or on behalf of
any director or officer may be paid in advance of the final disposition of a
Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such director or officer (or other person indemnified hereunder) , to
repay any such amount so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right of appeal that such
director or officer is not entitled to be indemnified for such expenses.
8.3 Not Exclusive. The right to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall not be deemed exclusive of any other rights to which those seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any law, by-law,
<PAGE>
35
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office.
8.4 Heirs, Etc.. The right to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall continue as to a person who has ceased to be a director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the heirs,
executors and administrators of such person.
8.5 Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who 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, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of Sections 8, the By-laws of the Corporation or under Section 145 of
the Delaware General Corporation Law or any other provision of law.
<PAGE>
36
8.6 Contract. The provisions of this Section 8 shall be a contract between
the Corporation and each director and officer who serves in such capacity at any
time while this Section 8 is in effect, pursuant to which the Corporation and
each such person intend to be legally bound. No repeal or modification of this
Section 8 shall affect any rights or obligations then existing or thereafter
arising with respect to any state of facts then or theretofore existing or
thereafter arising or any proceeding theretofore or thereafter brought or
threatened based in whole or in part upon any such state of facts.
8.7 Enforcement. The right to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
The burden of proving that such indemnification or reimbursement or advancement
of expenses are not appropriate shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of
such action that such indemnification or reimbursement or advancement of
expenses are proper in the circumstances nor an actual determination by the
Corporation (including its Board of Directors,
<PAGE>
37
independent legal counsel, or its stockholders) that such person is not entitled
to such indemnification or reimbursement or advancement of expenses, shall
constitute a defense to the action or create a presumption that such person is
not so entitled. Such person shall also be indemnified for any expenses incurred
in connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
8.8 Other Corporations. Any director or officer of the Corporation serving
(1) another corporation of which a majority of the shares entitled to vote in
the election of its directors is held by the Corporation, or (2) any employee
benefit plan of the Corporation or any corporation referred to in clause (1) ,
in any capacity, shall be deemed to be doing so at the request of the
Corporation.
8.9 Election. Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to this
Section 8 may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in effect
at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or
<PAGE>
38
advancement of expenses is sought. Such election shall be made, by a notice in
writing to the Corporation, at the time indemnification or reimbursement or
advancement of expenses is sought; provided that if no such notice is given, the
right to indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or reimbursement or
advancement of expenses is sought.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of the
stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
9.2 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
<PAGE>
39
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by law,
the Board shall determine from time to time whether, and, if allowed, when and
under what conditions and regulations, the accounts, books, minutes and other
records of the Corporation, or any of them, shall be open to the inspection of
the stockholders.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware.
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
<PAGE>
40
ARTICLE 12
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, the President may,
from time to time, appoint one or more attorneys or agents of the Corporation,
in the name and on behalf of the Corporation, 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 stock or other securities of such other
corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any such
other corporation and thereat vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
<PAGE>
41
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or new
By-laws may be adopted, by vote of the holders of the shares entitled to vote in
the election of directors. The By-laws may be altered, amended, supplemented or
repealed, or new By-laws may be adopted, by the Board. Any By-laws adopted,
altered, amended, or supplemented by the Board may be altered, amended, or
supplemented or repealed by the stockholders entitled to vote thereon.
PAGE 1
State of Delaware
[STATE INSIGNIA]
Office of Secretary of State
-----------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF RAMESOR, INC. FILED IN THIS OFFICE ON THE TWENTIETH DAY OF
JULY, A.D. 1990, AT 9 O'CLOCK A.M.
| | | | | | | | | |
/s/ Michael Harkins
------------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: | 2735489
DATE: 07/23/1990
[SEAL OF DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
DELAWARE]
750201077 RECEIVED FOR RECORD
July 25 A.D. 1990
/s/ Michael T. Scuse
RECORDER
$3.00 STATE DOCUMENT FEE PAID
<PAGE>
CERTIFICATE OF INCORPORATION
OF
RAMESOR, INC.
----------
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is
RAMESOR, INC.
SECOND: The address, including street, number, city, and county, of
the registered office of the corporation in the State of Delaware is 32
Loockerman Square, Suite L-100, City of Dover, County of Kent; and the name of
the registered agent of the corporation in the State of Delaware is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is One Thousand (1,000). The par value of each of
such shares is One Dollar ($1.00). All such shares are of one class and are
shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
T. M. Bonovich 32 Loockerman Square, Suite L-100
Dover, Delaware 19901
SIXTH: The corporation is to have perpetual existence.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 07/20/1990
150201077 - 2236587
<PAGE>
SEVENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
EIGHTH: For the management of the business and for the conduct of
the affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received
-2-
<PAGE>
any payment for any of its stock, the power to adopt, amend, or repeal the
By-Laws of the corporation may be exercised by the Board of Directors of
the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial
By-Law or in a By-Law adopted by the stockholders entitled to vote of the
corporation unless provisions for such classification shall be set forth
in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
-3-
<PAGE>
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 a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on July 20, 1990.
/s/ T. M. Bonovich
----------------------------------
T. M. Bonovich
Incorporator
-4-
State of Delaware
[STATE INSIGNIA]
Office of Secretary of State
------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
BEFORE PAYMENT FOR STOCK OF RAMESOR, INC. FILED IN THIS OFFICE ON THE FOURTEENTH
DAY OF AUGUST, A.D. 1990, AT 9 O'CLOCK A.M.
AUTHENTICATION: | 2761343
DATE: 08/15/1990
[SEAL OF DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
DELAWARE]
RECEIVED FOR RECORD
Aug. 16 A.D. 1990
/s/ Michael T. Scuse
RECORDER
$3.00 STATE DOCUMENT FEE PAID
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 8/14/1990
750226075-2236587
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF ANY PART OF THE CAPITAL
OF
RAMESOR, INC.
----------
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is
RAMESOR, INC.
2. The corporation has not received any payment for any of its
stock.
3. The certificate of incorporation of the corporation is hereby
amended by striking out Article FIRST thereof and by substituting in lieu of
said Article the following new Article:
"FIRST: The name of the corporation (hereinafter called the
"corporation") is ROSEMAR SILVER COMPANY, INC."
4. The amendment of the certificate of incorporation of the
corporation herein certified was duly adopted, pursuant to the provisions of
Section 241 of the General Corporation Law of the State of Delaware, by the sole
incorporator, no directors having been named in the certificate of incorporation
and no directors having been elected.
Signed on August 14, 1990.
/s/ T. M. Bonovich
----------------------------------
T. M. Bonovich, Sole Incorporator
BYLAWS
------
OF
Rosemar Silver Company, Inc.
(a Delaware corporation)
-----------------
ARTICLE I
---------
STOCKHOLDERS
------------
1. CERTIFICATES REPRESENTING STOCK. Certificates representing stock
in the corporation shall be signed by, or in the name of, the corporation by the
Chairman or Vice-Chairman of the Board of Directors, if any, or by the President
or a Vice-President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the corporation. Any or all the
signatures on any such 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.
Whenever the corporation shall be authorized to issue more than one
class of stock or more than one series of any class Opf stock, and whenever the
corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or
uncertificated shares in place of any certificate theretofore issued by it,
alleged to have been lost, stolen, or destroyed, and the Board of Directors may
require the owner of the lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss,
<PAGE>
theft, or destruction of any such certificate or the issuance of any such new
certificate or uncertificated shares.
2. UNCERTIFICATED SHARES. Subject to any conditions imposed by the
General Corporation Law, the Board of Directors of the corporation may provide
by resolution or resolutions that some or all of any or all classes or series of
the stock of the corporation shall be uncertificated shares. Within a reasonable
time after the issuance or transfer of any uncertificated shares, the
corporation shall send to the registered owner thereof any written notice
prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be
required to, issue fractions of a share. If the corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interests by those entitled thereto, (2) 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 (3) issue scrip or warrants in registered form (either
represented by a certificate or uncertificated) or bearer form (represented by a
certificate) which shall entitle the holder to receive a full share upon the
surrender of such scrip or warrants aggregating a full share. A certificate for
a fractional share or an uncertificated fractional share shall, but scrip or
warrants shall not unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to participate in any
of the assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the conditions
that they shall become void if not exchanged for certificates representing the
full shares or uncertificated full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are exchangeable may
be sold by the corporation and the proceeds thereof distributed to the holders
of scrip or warrants, or subject to any other conditions which the Board of
Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof, or
by his
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<PAGE>
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, in the case of shares represented by certificates, on surrender of the
certificate or certificates for such shares of stock properly endorsed and the
payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. 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, 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 shall not be more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders 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. 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.
In order that the corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, 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 date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining the stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
the General Corporation Law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
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<PAGE>
Directors is required by the General Corporation Law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action. In order that
the corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders 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,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the right
to notice of a meeting of stockholders or 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 "share" or "shares" or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an outstanding share or
shares of stock and to a holder or holders of record of outstanding shares of
stock when the corporation is authorized to issue only one class of shares of
stock, and said reference is also intended to include any outstanding share or
shares of stock and any holder or holders of record of outstanding shares of
stock 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 of
stock 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 of stock, one or more of which are limited or
denied such rights thereunder; provided, however, that no such right shall vest
in the event of an increase or a decrease in the authorized number of shares of
stock of any class or series which is otherwise denied voting rights under the
provisions of the certificate of incorporation, except as any provision of law
may otherwise require.
7. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the
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<PAGE>
directors, provided, that the first annual meeting shall be held on a date
within thirteen months after the organization of the corporation, and each
successive annual meeting shall be held on a date within thirteen months after
the date of the preceding annual meetings. A special meeting shall be held on
the date and at the time fixed by the directors.
- PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the directors may, from time
to time, fix. Whenever the directors shall fail to fix such place, the meeting
shall be held at the registered office of the corporation in the State of
Delaware.
- CALL. Annual meetings and special meetings may be called by the
directors or by any officer instructed by the directors to call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall
be given, stating the place, date, and hour of the meeting and stating the place
within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or purposes. The notice of a
special meeting shall in all instances state the purpose or purposes for which
the meeting is called. The notice of any meeting shall also include, or be
accompanied by, any additional statements, information, or documents prescribed
by the General Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be given, personally
or by mail, not less than ten days nor more than sixty days before the date of
the meeting, unless the lapse of the prescribed period of time shall have been
waived, and directed to each stockholder at his record address or at such other
address which he may have furnished by request in writing to the Secretary of
the corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States Mail. If a meeting is adjourned to
another time, not more than thirty days hence, and/or to another place, and if
an announcement of the adjourned time and/or place is made at the meeting, it
shall not be necessary to give notice of the adjourned meeting unless the
directors, after adjournment, fix a new record date for the adjourned
-5-
<PAGE>
meeting. Notice need not be given to any stockholder who submits a written
waiver of notice signed by him before or after the time stated therein.
Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends the
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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, 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 days prior to the
meeting, either at a place within the city or other municipality or community
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 stockholder
who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice-President, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the stockholders.
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 Chairman of the meeting shall appoint a
secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to
-6-
<PAGE>
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 stockholder or by his attorney-in-fact. No proxy shall be
voted or acted upon after three years from its date unless such proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and, if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
- INSPECTORS. The directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the 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 inspectors at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock 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 stockholders. On request of
the person presiding at the meeting, the inspector or inspectors, if any, shall
make a report in writing of any challenge, question, or matter determined by him
or them and execute a certificate of any fact found by him or them.
- QUORUM. The holders of a majority of the outstanding shares of
stock shall constitute a quorum at a meeting of stockholders for the transaction
of any business. The stockholders present may adjourn the meeting despite the
absence of a quorum.
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<PAGE>
- VOTING. Each share of stock shall entitle the holders thereof to
one vote. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. Any other action shall be authorized by a majority of
the votes cast except where the General Corporation Law prescribes a different
percentage of votes and/or a different exercise of voting power, and except as
may be otherwise prescribed by the provisions of the certificate of
incorporation and these Bylaws. In the election of directors, and for any other
action, voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the
General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent 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. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. Action taken pursuant to this paragraph shall be
subject to the provisions of Section 228 of the General Corporation Law.
ARTICLE II
DIRECTORS
---------
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of Directors
of the corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder,
a citizen of the United States, or a resident of the State of Delaware. The
initial Board of Directors shall consist of persons. Thereafter the number of
directors constituting the whole board shall be at least one. Subject to the
foregoing limitation and except
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<PAGE>
for the first Board of Directors, such number may be fixed from time to time by
action of the stockholders or of the directors, or, if the number is not fixed,
the number shall be . The number of directors may be increased or decreased by
action of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless the
members thereof shall have been named in the certificate of incorporation, shall
be elected by the incorporator or incorporators and shall hold office until the
first annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. Any director may resign
at any time upon written notice to the corporation. Thereafter, directors who
are elected at an annual meeting of stockholders, and directors who are elected
in the interim to fill vacancies and newly created directorships, shall hold
office until the next annual meeting of stockholders and until their successors
are elected and qualified or until their earlier resignation or removal. Except
as the General Corporation Law may otherwise require, in the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the Board of Directors, including unfilled
vacancies resulting from the removal of directors for cause or without cause,
may be filled by the vote of a majority of the remaining directors then in
office, although less than a quorum, or by the sole remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or without the
State of Delaware as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, of the President, or of a majority of the directors in office.
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<PAGE>
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director or to any member of
a committee of directors who submits a written waiver of notice signed by him
before or after the time stated therein. Attendance of any such person at a
meeting shall constitute a waiver of notice of such meeting, except when he
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. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the directors need be specified in any
written waiver of notice.
- QUORUM AND ACTION. A majority of the whole Board shall constitute
a quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided, that
such majority shall constitute at least one-third of the whole Board. 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, and
except as otherwise provided by the General Corporation Law, the vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board. The quorum and voting provisions herein stated
shall not be construed as conflicting with any provisions of the General
Corporation Law and these Bylaws which govern a meeting of directors held to
fill vacancies and newly created directorships in the Board or action of
disinterested directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman
of the Board, if any and if present and acting, or the President, if present and
acting, or any other director chosen by the Board, shall preside.
-10-
<PAGE>
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the
General Corporation Law, any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. 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 any member of any such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation with the exception of
any authority the delegation of which is prohibited by Section 141 of the
General Corporation Law, and may authorize the seal of the corporation to be
affixed to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE III
-----------
OFFICERS
--------
The officers of the corporation shall consist of a President, a
Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by the
Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an
Executive vice-President, one or more other Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
with such titles as the resolution of the Board of Directors choosing
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<PAGE>
them shall designate. Except as may otherwise be provided in the resolution of
the Board of Directors choosing him, no officer other than the Chairman or
Vice-Chairman of the Board, if any, need be a director. Any number of offices
may be held by the same person, as the directors may determine.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting of the
Board of Directors following the next annual meeting of stockholders and until
his successor shall have been chosen and qualified.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as shall
be prescribed in the resolutions of the Board of Directors designating and
choosing such officers and prescribing their authority and duties, and shall
have such additional authority and duties as are incident to their office except
to the extent that such resolutions may be inconsistent therewith. The Secretary
or an Assistant Secretary of the corporation shall record all of the proceedings
of all meetings and actions in writing of stockholders, directors, and
committees of directors, and shall exercise such additional authority and
perform such additional duties as the Board shall assign to him. Any officer may
be removed, with or without cause, by the Board of Directors. Any vacancy in any
office may be filled by the Board of Directors.
ARTICLE IV
----------
CORPORATE SEAL
--------------
The corporate seal shall be in such form as the Board of Directors
shall prescribe.
ARTICLE V
---------
FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
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<PAGE>
ARTICLE VI
----------
CONTROL OVER BYLAWS
-------------------
Subject to the provisions of the certificate of incorporation and
the provisions of the General Corporation Law, the power to amend, alter, or
repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of
Directors or by the stockholders.
BK-N129PG324 PAGE 1
State of Delaware
[STATE INSIGNIA]
Office of Secretary of State
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF PORT PROPERTY HOLDINGS, INC. FILED IN THIS OFFICE ON THE
TWENTIETH DAY OF JULY, A.D. 1990, AT 9 O'CLOCK A.M.
| | | | | | | | | |
RECEIVED FOR RECORD
July 24, A.D. 1990
/s/ Michael T. Scuse
RECORDER
$3.00 STATE DOCUMENT FEE PAID
/s/ Michael Harkins
------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: |2735491
DATE: 07/23/1990
[SEAL]
750201078
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 07/20/1990
750201078 - 2236588
CERTIFICATE OF INCORPORATION
----------------------------
OF
PORT PROPERTY HOLDINGS, INC.
----------------------------
-----------------
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is
PORT PROPERTY HOLDINGS, INC.
SECOND: The address, including street, number, city, and county, of
the registered office of the corporation in the State of Delaware is 32
Loockerman Square, Suite L-l00, City of Dover, County of Kent; and the name of
the registered agent of the corporation in the State of Delaware is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is One Thousand (1,000). The par value of each of
such shares is One Dollar ($1.00). All such shares are of one class and are
shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
---- ------- -------
T. M. Bonovich 32 Loockerman Square, Suite L-l00
Dover, Delaware 19901
SIXTH: The corporation is to have perpetual existence.
<PAGE>
SEVENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
EIGHTH: For the management of the business and for the conduct of
the affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received
-2-
<PAGE>
any payment for any of its stock, the power to adopt, amend, or repeal
the By-Laws of the corporation may be exercised by the Board of Directors
of the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 141 of the
General Corporation Law of the State of Delaware shall be set forth in an
initial By-Law or in a By-Law adopted by the stockholders entitled to
vote of the corporation unless provisions for such classification shall
be set forth in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
-3-
<PAGE>
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 a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on July 20, 1990.
/s/ T. M. Bonovich
------------------------
T. M. Bonovich
Incorporator
-4-
State of Delaware PAGE 1
[STATE INSIGNIA]
Office of Secretary of State
------------------------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
BEFORE PAYMENT FOR STOCK OF PORT PROPERTY HOLDINGS, INC. FILED IN THIS OFFICE ON
THE FOURTEENTH DAY OF AUGUST, A.D. 1990, AT 9 O'CLOCK A.M.
| | | | | | | | | |
RECEIVED FOR RECORD
Aug. 16 A.D. 1990
/s/ Michael T. Scuse
Recorder
$3.00 STATE DOCUMENT FEE PAID
[SEAL OF THE DEPARTMENT OF STATE /s/ Michael Harkins
OFFICE OF THE SECRETARY OF STATE --------------------------------
DELAWARE] Michael Harkins, Secretary of State
AUTHENTICATION: |2761344
750226076
DATE: 08/15/1990
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/14/1990
750226076 - 2236588
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF ANY PART OF THE CAPITAL
OF
PORT PROPERTY HOLDINGS, INC.
------------------
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is
PORT PROPERTY HOLDINGS, INC.
2. The corporation has not received any payment for any of its
stock.
3. The certificate of incorporation of the corporation is hereby
amended by striking out Article FIRST thereof and by substituting in lieu of
said Article the following new Article:
"FIRST: The name of the corporation (hereinafter called the
"corporation") is TOWLE HOLLOWARE, INC."
4. The amendment of the certificate of incorporation of the
corporation herein certified was adopted, pursuant to the provisions of Section
241 of General Corporation Law of the State of Delaware, by sole incorporator,
no directors having been named in the certificate of incorporation and no
directors having elected.
Signed on August 14, 1990.
/s/ T. M. Bonovich
-----------------------------
T. M. Bonovich, Sole Incorporator
BY-LAWS
of
TOWLE HOLLOWARE, INC.
(A Delaware Corporation)
------------------------
ARTICLE 1
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Chairman" means the Chairman of the Board of Directors of the
Corporation.
1.7 "Corporation" means Towle Holloware, Inc.
1.8 "Directors" means directors of the Corporation.
<PAGE>
2
1.9 "Entire Board" means all directors of the Corporation in office,
whether or not present at a meeting of the Board, but disregarding vacancies.
1.10 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.11 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Stockholders" means stockholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of Stockholders shall be held at
the office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or in
the waiver of notice thereof.
2.2 Annual Meeting. A meeting of Stockholders shall be held annually for
the election of Directors and the transaction of other business at such hour and
on such business day in April or May or as may be determined by the Board and
designated in the notice of meeting.
<PAGE>
3
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of Stockholders for the election of Directors and the transaction of
other business is not held within the months specified in Section 2.2 hereof,
the Board shall call a meeting of Stockholders for the election of Directors and
the transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of Stockholders (other
than a special meeting for the election of Directors), unless otherwise
prescribed by statute, may be called at any time by the Board or by the
President or by the Secretary. At any special meeting of Stockholders only such
business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section 2.6 hereof or
in any waiver of notice thereof given pursuant to Section 2.7 hereof.
2.5 Fixing Record Date. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, (ii) unless otherwise provided in the Certificate of
Incorporation to express consent to corporate action in writing without a
meeting or (iii) 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 (b) any other lawful action, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date was adopted by the Board and which
record date shall not be (x) in the case of clause (a)(i) above, more than sixty
nor less than ten days before the date of such meeting, (y) in the case
<PAGE>
4
of clause (a)(ii) above, more than 10 days after the date upon which the
resolution fixing the record date was adopted by the Board and (z) in the case
of clause (a)(iii) or (b) above, more than sixty days prior to such action. If
no such record date is fixed:
2.5.1 the record date for determining Stockholders entitled to
notice of or to vote at a meeting of stockholders 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;
2.5.2 the record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting (unless
otherwise provided in the Certificate of Incorporation), when no prior
action by the Board is required under the General Corporation Law, shall
be the first day on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded; and when prior action by the Board is
required under the General Corporation Law, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the date
on which the Board adopts the resolution taking such prior action; and
<PAGE>
5
2.5.3 the record date for determining stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be
at the close of business on the day on which the Board adopts the
resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting. Delivery made to the Corporation's
registered office in accordance with Section 2.5.2 shall be by hand or by
certified or registered mail, return receipt requested.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 2.5 and 2.7 hereof, whenever under the provisions of any statute, the
Certificate of Incorporation or these By-laws, Stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
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 any statute, the Certificate of Incorporation or these By-laws, a
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten nor more than sixty days before the date of the meeting, to each
Stockholder entitled to notice of or to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
with postage prepaid, directed to the Stockholder at his or her address as it
appears on the records of the Corporation. An affidavit of
<PAGE>
6
the Secretary or an Assistant Secretary or of the transfer agent of the
Corporation that the notice required by this Section 2.6 has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, the adjournment is for more than thirty 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 at the meeting.
2.7 Waivers of Notice. Whenever the giving of any notice is required by
statute, the Certificate of Incorporation or these By-laws, a waiver thereof, in
writing, signed by the Stockholder or Stockholders entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Stockholder at a meeting shall
constitute a waiver of notice of such meeting except when the Stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders need be
specified in any written waiver of notice unless so required by statute, the
Certificate of Incorporation or these By-laws.
2.8 List of Stockholders. The Secretary shall prepare and make, or cause
to be prepared and made, at least ten days before every meeting of Stockholders,
<PAGE>
7
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, the Stockholder's agent, or attorney, at the
Stockholder's expense, 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 Stockholder who is present. The Corporation shall maintain the
Stockholder list in written form or in another form capable of conversion into
written form within a reasonable time. Upon the willful neglect or refusal of
the Directors to produce such a list at any meeting for the election of
Directors, they shall be ineligible for election to any office at such meeting.
The stock ledger shall be the only evidence as to who are the Stockholders
entitled to examine the stock ledger, the list of Stockholders or the books of
the Corporation, or to vote in person or by proxy at any meeting of
Stockholders.
2.9 Quorum of Stockholders; Adjournment. Except as otherwise provided by
any statute, the Certificate of Incorporation or these By-laws, the holders of
one-third of all outstanding shares of stock entitled to vote at any meeting of
Stockholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at such meeting. When a quorum is
once present
<PAGE>
8
to organize a meeting of Stockholders, it is not broken by the subsequent
withdrawal of any Stockholders. The holders of a majority of the shares of stock
present in person or represented by proxy at any meeting of Stockholders,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place. 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.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each share of capital stock standing in his or her
name on the record of Stockholders determined in accordance with Section 2.5
hereof. If the Certificate of Incorporation provides for more or less than one
vote for any share on any matter, each reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in assuming
that the persons in whose names shares of capital stock stand on the stock
ledger of the Corporation are entitled to vote such shares. Holders of
redeemable
<PAGE>
9
shares of stock are not entitled to vote after the notice of redemption is
mailed to such holders and a sum sufficient to redeem the stocks has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares of stock. At any meeting of Stockholders (at which a quorum was
present to organize the meeting), all matters, except as otherwise provided by
statute or by the Certificate of Incorporation or by these By-laws, shall be
decided by a majority of the votes cast at such meeting by the holders of shares
present in person or represented by proxy and entitled to vote thereon, whether
or not a quorum is present when the vote is taken. All elections of Directors
shall be by written ballot unless otherwise provided in the Certificate of
Incorporation. In voting on any other question on which a vote by ballot is
required by law or is demanded by any Stockholder entitled to vote, the voting
shall be by ballot. Each ballot shall be signed by the Stockholder voting or the
Stockholder's proxy and shall state the number of shares voted. On all other
questions, the voting may be viva voce. 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
such Stockholder by proxy. The validity and enforceability of any proxy shall be
determined in accordance with Section 212 of the General Corporation Law. A
Stockholder may revoke any proxy that is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary.
<PAGE>
10
2.11 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. The Board, in advance of any meeting of Stockholders, may appoint
one or more inspectors to act at the meeting and make a written report thereof.
The Board may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate has been appointed
or is able to act at a meeting, the person presiding at the meeting may appoint,
and on the request of any Stockholder entitled to vote thereat shall appoint,
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of 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 (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 their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. Unless otherwise provided by the
Board, 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 determined by
the person presiding at the meeting and shall be announced at the meeting. No
ballot, proxies or votes, or any revocation thereof or change thereto, shall be
accepted by the inspectors
<PAGE>
11
after the closing of the polls unless the Court of Chancery of the State of
Delaware upon application by a Stockholder shall determine otherwise.
2.12 Organization. At each meeting of Stockholders, the President, or in
the absence of the President, the Chairman, or if there is no Chairman or if
there be one and the Chairman is absent, a Vice President, and in case more than
one Vice President shall be present, that Vice President designated by the Board
(or in the absence of any such designation, the most senior Vice President,
based on age, present), shall act as chairman of the meeting. The Secretary, or
in his or her absence, one of the Assistant Secretaries, shall act as secretary
of the meeting. In case none of the officers above designated to act as chairman
or secretary of the meeting, respectively, shall be present, a chairman or a
secretary of the meeting, as the case may be, shall be chosen by a majority of
the votes cast at such meeting by the holders of shares of capital stock present
in person or represented by proxy and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
Stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by the General
Corporation Law to be taken at any annual or special meeting of stockholders
<PAGE>
12
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 and
shall be delivered (by hand or by certified or registered mail, return receipt
requested) to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by this
Section 2.14, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation as aforesaid. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those Stockholders who have not consented in writing.
<PAGE>
13
ARTICLE 3
Directors
---------
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or these
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by these By-laws, the Board may exercise all powers and
perform all acts that are not required, by these By-laws or the Certificate of
Incorporation or by statute, to be exercised and performed by the Stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of
one or more members. The number of Directors shall be fixed initially by the
incorporator and may thereafter be changed from time to time by action of the
stockholders or by action of the Board. Directors need not be stockholders. Each
Director shall hold office until a successor is elected and qualified or until
the Director's death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by statute
or by the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of stockholders by the holders of shares entitled to vote in
the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided
in the Certificate of Incorporation, newly created Directorships resulting from
an increase in the number of Directors and vacancies occurring in the Board for
any other reason, including the removal of Directors without cause, may be
filled by the affirmative votes of a majority of the entire Board, although less
than a quorum, or by a sole remaining Director, or may be elected by a plurality
of the votes cast by the holders of shares of capital stock entitled to vote in
the election at a special meeting of stockholders called for that purpose. A
Director elected to fill a vacancy shall be
<PAGE>
14
elected to hold office until a successor is elected and qualified, or until the
Director's earlier death, resignation or removal.
3.5 Resignation. Any Director may resign at any time by written notice
to the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified in such resignation, the acceptance
of such resignation shall not be necessary to make it effective.
3.6 Removal. Subject to the provisions of Section 141(k) of the General
Corporation Law, any or all of the Directors may be removed with or without
cause by vote of the holders of a majority of the shares then entitled to vote
at an election of Directors.
3.7 Compensation. Each Director, in consideration of his or her service
as such, shall be entitled to receive from the Corporation such amount per annum
or such fees for attendance at Directors' meetings, or both, as the Board may
from time to time determine, together with reimbursement for the reasonable
out-of-pocket expenses, if any, incurred by such Director in connection with the
performance of his or her duties. Each Director who shall serve as a member of
any committee of Directors in consideration of serving as such shall be entitled
to such additional amount per annum or such fees for attendance at committee
meetings, or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by
such Director in the performance of his or her duties. Nothing contained in this
Section 3.7 shall preclude any Director from serving
<PAGE>
15
the Corporation or its subsidiaries in any other capacity and receiving proper
compensation therefor.
3.8 Times and Places of Meetings. The Board may hold meetings, both
regular and special, either within or without the State of Delaware. The times
and places for holding meetings of the Board may be fixed from time to time by
resolution of the Board or (unless contrary to a resolution of the Board) in the
notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the annual
meeting of stockholders for the election of Directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held at
any other time and place specified in a notice given as provided in Section 3.11
hereof for special meetings of the Board or in a waiver of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held without
notice at such times and at such places as shall from time to time be determined
by the Board.
3.11 Special Meetings. Special meetings of the Board may be called by
the Chairman, the President or the Secretary or by any two or more Directors
then serving on at least one day's notice to each Director given by one of the
means specified in Section 3.14 hereof other than by mail, or on at least three
days' notice if given by mail. Special meetings shall be called by the Chairman,
President or Secretary in like manner and on like notice on the written request
of any two or more of the Directors then serving.
3.12 Telephone Meetings. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of such
committee 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 Section 3.12 shall constitute
presence in person at such meeting.
3.13 Adjourned Meetings. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least one day's
notice of any adjourned meeting of the Board shall be given to each Director
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 3.14 hereof other than by mail,
or at least three days' notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as originally
called.
3.14 Notice Procedure. Subject to Sections 3.11 and 3.17 hereof,
whenever, under the provisions of any statute, the Certificate of Incorporation
or these By-laws, notice is required to be given to any Director, such notice
shall be deemed given effectively if given in person or by telephone, by mail
addressed to such Director at such Director's address as it appears on the
records of the Corporation, with postage
<PAGE>
17
thereon prepaid, or by telegram, telex, telecopy or similar means addressed as
aforesaid.
3.15 Waiver of Notice. Whenever the giving of any notice is required by
statute, the Certificate of Incorporation or these By-laws, a waiver thereof, in
writing, signed by the person or persons entitled to said notice, whether before
or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by 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 on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Directors or a committee of Directors
need be specified in any written waiver of notice unless so required by statute,
the Certificate of Incorporation or these By-laws.
3.16 Organization. At each meeting of the Board, the Chairman, or in the
absence of the Chairman, the President, or in the absence of the President, a
chairman chosen by a majority of the Directors present, shall preside. The
Secretary shall act as secretary at each meeting of the Board. In case the
Secretary shall be absent from any meeting of the Board, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all Assistant Secretaries, the person
presiding at the meeting may appoint any person to act as secretary of the
meeting.
<PAGE>
18
3.17 Quorum of Directors. The presence in person of a majority of the
entire Board shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, but a majority of a smaller
number may adjourn any such meeting to a later date.
3.18 Action by Majority Vote. Except as otherwise expressly required by
statute, the Certificate of Incorporation or these By-laws, the act of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board.
3.19 Action Without Meeting. 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 or of any committee thereof may be taken
without a meeting if all Directors or members of such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
-----------------------
The Board may, by resolution passed by a vote of a majority of
the entire Board, designate one or more committees, each committee to consist of
one or more of the Directors of the Corporation. 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 such committee. If a member of a
committee shall be absent from any meeting, or disqualified from voting thereat,
the remaining
<PAGE>
19
member or members present and not disqualified from voting, whether or not such
member or members constitute a quorum, may, by a unanimous vote, appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board passed as aforesaid, shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be
impressed on all papers that may require it, but no such committee shall have
the power or authority of the Board in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation under section
251 or section 252 of the General Corporation Law, recommending to the
stockholders (a) the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, or (b) a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such
committee shall have the power and authority to declare a dividend, to authorize
the issuance of stock or to adopt a certificate of ownership and merger pursuant
to Section 253 of the General Corporation Law. Unless otherwise specified in the
resolution of the Board designating a committee, at all meetings of such
committee a majority of the total number of members of the committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of the members of the committee present at any meeting at which there is a
quorum shall be the act of the committee. Each committee shall keep regular
minutes of its meetings. Unless the Board otherwise provides, each committee
<PAGE>
20
designated by the Board 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 conducts its business pursuant to Article 3 of
these By-laws.
ARTICLE 5
OFFICERS
--------
5.1 Positions. The officers of the Corporation shall be a President, a
Secretary, a Treasurer and such other officers as the Board may appoint,
including a Chairman, one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers, who shall exercise such powers and perform
such duties as shall be determined from time to time by the Board. The Board may
designate one or more Vice Presidents as Executive Vice Presidents and may use
descriptive words or phrases to designate the standing, seniority or areas of
special competence of the Vice Presidents elected or appointed by it. Any number
of offices may be held by the same person unless the Certificate of
Incorporation or these By-laws otherwise provide.
5.2 Appointment. The officers of the Corporation shall be chosen by
the Board at its annual meeting or at such other time or times as the Board
shall determine.
5.3 Compensation. The compensation of all officers of the Corporation
shall be fixed by the Board. No officer shall be prevented from receiving a
salary or other compensation by reason of the fact that the officer is also a
Director.
5.4 Term of Office. Each officer of the Corporation shall hold office
for the term for which he or she is elected and until such officer's successor
is chosen
<PAGE>
21
and qualifies or until such officer's earlier death, resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Such resignation shall take effect at the date of receipt of such
notice or at such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any. Any officer elected or appointed by
the Board may be removed at any time, with or without cause, by vote of a
majority of the entire Board. Any vacancy occurring in any office of the
Corporation shall be filled by the Board. The removal of an officer without
cause shall be without prejudice to the officer's contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any or
all of its officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been appointed, shall
preside at all meetings of the Board and shall exercise such powers and perform
such other duties as shall be determined from time to time by the Board.
5.7 President. The President shall be the Chief Executive Officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of Directors. The President shall preside at all meetings
of the Stockholders and at all meetings of the Board at which the Chairman (if
there be one) is not present. The President may sign and execute in the name of
the Corporation deeds, mortgages,
<PAGE>
22
bonds, contracts and other instruments except in cases in which the signing and
execution thereof shall be expressly delegated by the Board or by these By-laws
to some other officer or agent of the Corporation or shall be required by
statute otherwise to be signed or executed and, in general, the President shall
perform all duties incident to the office of President of a corporation and such
other duties as may from time to time be assigned to the President by the Board.
5.8 Vice Presidents. At the request of the President, or, in the
President's absence, at the request of the Board, the Vice Presidents shall (in
such order as may be designated by the Board, or, in the absence of any such
designation, in order of seniority based on age) perform all of the duties of
the President and, in so performing, shall have all the powers of, and be
subject to all restrictions upon, the President. Any Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall be expressly delegated by the Board or by these By-laws to some other
officer or agent of the Corporation, or shall be required by statute otherwise
to be signed or executed, and each Vice President shall perform such other
duties as from time to time may be assigned to such Vice President by the Board
or by the President.
5.9 Secretary. The Secretary shall attend all meetings of the Board
and of the Stockholders and shall record all the proceedings of the meetings of
the Board and of the stockholders in a book to be kept for that purpose, and
shall perform like duties for committees of the Board, when required. The
Secretary shall give, or
<PAGE>
cause to be given, notice of all special meetings of
the Board and of the stockholders and shall perform such other duties as may be
prescribed by the Board or by the President, under whose supervision the
Secretary shall be. The Secretary shall have custody of the corporate seal of
the Corporation, and the Secretary, or an Assistant Secretary, shall have
authority to impress the same on any instrument requiring it, and when so
impressed the seal may be attested by the signature of the Secretary or by the
signature of such Assistant Secretary. The Board may give general authority to
any other officer to impress the seal of the Corporation and to attest the same
by such officer's signature. The Secretary or an Assistant Secretary may also
attest all instruments signed by the President or any Vice President. The
Secretary shall have charge of all the books, records and papers of the
Corporation relating to its
<PAGE>
23
organization and management, shall see that the reports, statements and other
documents required by statute are properly kept and filed and, in general, shall
perform all duties incident to the office of Secretary of a corporation and such
other duties as may from time to time be assigned to the Secretary by the Board
or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable effects in the name and to the
credit of the Corporation in such depositaries as may be designated by the
Board; against proper vouchers, cause such funds to be disbursed by checks or
drafts on the authorized depositaries of the Corporation signed in such manner
as shall be determined by the
<PAGE>
24
Board and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books or other records
maintained for the purpose full and adequate account of all moneys received or
paid for the account of the Corporation; have the right to require from time to
time reports or statements giving such information as the Treasurer may desire
with respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board shall require the Treasurer so to do, an
account of the financial condition of the Corporation and of all financial
transactions of the Corporation; exhibit at all reasonable times the records and
books of account to any of the Directors upon application at the office of the
Corporation where such records and books are kept; disburse the funds of the
Corporation as ordered by the Board; and, in general, perform all duties
incident to the office of Treasurer of a corporation and such other duties as
may from time to time be assigned to the Treasurer by the Board or the
President.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board, except as otherwise provided in
these By-laws, may prospectively or retroactively authorize any officer or
officers,
<PAGE>
25
employee or employees or agent or agents, in the name and on behalf of the
Corporation, to enter into any contract or execute and deliver any instrument,
and any such authority may be general or confined to specific instances, or
otherwise limited. 6.2 Loans. The Board may prospectively or retroactively
authorize the President or any other officer, employee or agent of the
Corporation to effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances the person so authorized may make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, and, when authorized by the Board so to do,
may pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority conferred
by the Board may be general or confined to specific instances, or otherwise
limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all evidences of
indebtedness of the Corporation shall be signed on behalf of the Corporation in
such manner as shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation with such
banks, trust companies, investment banking firms, financial institutions or
other depositaries as the Board may select or as may be selected by an officer,
employee or agent of the
<PAGE>
26
Corporation to whom such power to select may from time to time be delegated by
the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the Chairman, the
President or a Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer, and may be impressed with the seal of
the Corporation 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 registrar other than the Corporation itself or its employee. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may, unless otherwise ordered by the Board, be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by the holder's duly authorized attorney appointed by a power of
attorney duly executed and filed with the Secretary or a transfer agent of the
Corporation, and on
<PAGE>
27
surrender of the certificate or certificates representing such shares of capital
stock properly endorsed for transfer and upon payment of all necessary transfer
taxes. Every certificate exchanged, returned or surrendered to the Corporation
shall be marked "Cancelled," with the date of cancellation, by the Secretary or
an Assistant Secretary or the transfer agent of the Corporation. A person in
whose name shares of capital stock shall stand on the books of the Corporation
shall be deemed the owner thereof to receive dividends, to vote as such owner
and for all other purposes as respects the Corporation. No transfer of shares of
capital stock shall be valid as against the Corporation, its stockholders and
creditors for any purpose, except to render the transferee liable for the debts
of the Corporation to the extent provided by law, until such transfer shall have
been entered on the books of the Corporation by an entry showing from and to
whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The
holder of any shares of capital stock of the Corporation shall immediately
notify the Corporation of any loss, destruction, theft or mutilation of the
certificate representing such shares, and the Corporation may issue a new
certificate to replace the certificate alleged to have been lost, destroyed,
stolen or mutilated. The Board may, in its discretion, as a condition to the
issue of any such new certificate, require the owner of the lost, destroyed,
stolen or mutilated certificate, or his or her legal representatives, to
<PAGE>
28
make proof satisfactory to the Board of such loss, destruction, theft or
mutilation and to advertise such fact in such manner as the Board may require,
and to give the Corporation and its transfer agents and registrars, or such of
them as the Board may require, a bond in such form, in such sums and with such
surety or sureties as the Board may direct, to indemnify the Corporation and its
transfer agents and registrars against any claim that may be made against any of
them on account of the continued existence of any such certificate so alleged to
have been lost, destroyed, stolen or mutilated and against any expense in
connection with such claim.
7.5 Rules and Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws or
with the Certificate of Incorporation, concerning the issue, transfer and
registration of certif icates representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder, including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the General
Corporation Law, shall be ineffective except against a person with actual
knowledge of the restriction. A restriction on the transfer or registration of
transfer of
<PAGE>
29
capital stock of the Corporation may be imposed either by the Certificate of
Incorporation or by an agreement among any number of stockholders or among such
stockholders and the Corporation. No restriction so imposed shall be binding
with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such
amounts and at such time or times as it, in its discretion, shall deem
advisable giving due consideration to the condition of the affairs of
the Corporation;
7.7.2 may use and apply, in its discretion, any of the
surplus of the Corporation in purchasing or acquiring any shares of
capital stock of the Corporation, or purchase warrants therefor, in
accordance with law, or any of its bonds, debentures, notes, scrip or
other securities or evidences of indebtedness; and
7.7.3 may set aside from time to time out of such surplus or
net profits such sum or sums as, in its discretion, it may think
proper, as a reserve fund to meet contingencies, or for equalizing
dividends or for the purpose of maintaining or increasing the property
or business of the Corporation, or for any purpose it may think
conducive to the best interests of the Corporation.
<PAGE>
30
ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnity Undertaking. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or proceeding
(a "Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a Director or
officer of the Corporation, or, at the request of the Corporation, is or was
serving as a director or officer of any other corporation or in a capacity with
comparable authority or responsibilities for any partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees, disbursements and other
charges). Persons who are not directors or officers of the Corporation (or
otherwise entitled to indemnification pursuant to the preceding sentence) may be
similarly indemnified in respect of service to the Corporation or to an Other
Entity at the request of the Corporation to the extent the Board at any time
specifies that such persons are entitled to the benefits of this Article 8.
8.2 Advancement of Expenses. The Corporation shall, from time to time,
reimburse or advance to any Director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses, including
<PAGE>
31
attorneys' fees and disbursements, incurred in connection with any Proceeding,
in advance of the final disposition of such Proceeding; provided, however, that,
if required by the General Corporation Law, such expenses incurred by or on
behalf of any Director or officer or other person may be paid in advance of the
final disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such Director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 Rights Not Exclusive. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, the Certificate of
Incorporation, these By-laws, any agreement, any vote of stockholders or
disinterested Directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
8.4 Continuation of Benefits. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall continue as to a person who has ceased to be a Director or
officer (or other person indemnified hereunder) and shall inure to the benefit
of the executors, administrators, legatees and distributees of such person.
<PAGE>
32
8.5 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who 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 an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article 8, the Certificate of
Incorporation or under section 145 of the General Corporation Law or any other
provision of law.
8.6 Binding Effect. The provisions of this Article 8 shall be
a contract between the Corporation, on the one hand, and each Director and
officer who serves in such capacity at any time while this Article 8 is in
effect and any other person entitled to indemnification hereunder, on the other
hand, pursuant to which the Corporation and each such Director, officer or other
person intend to be, and shall be legally bound. No repeal or modification of
this Article 8 shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.7 Procedural Rights. The rights to indemnification and reimbursement
or advancement of expenses provided by, or granted pursuant to, this Article 8
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
The
<PAGE>
33
burden of proving that such indemnification or reimbursement or advancement of
expenses is not appropriate shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors, its independent legal counsel
and its stockholders) to have made a determination prior to the commencement of
such action that such indemnification or reimbursement or advancement of
expenses is proper in the circumstances nor an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel and
its stockholders) that such person is not entitled to such indemnification or
reimbursement or advancement of expenses shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such a
person shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
8.8 Service Deemed at Corporation's Request. Any Director or officer
of the Corporation serving in any capacity (a) another corporation of which a
majority of the shares entitled to vote in the election of its directors is
held, directly or indirectly, by the Corporation or (b) any employee benefit
plan of the Corporation or any corporation referred to in clause (a) shall be
deemed to be doing so at the request of the Corporation.
8.9 Election of Applicable Law. Any person entitled to be indemni fied
or to reimbursement or advancement of expenses as a matter of right pursuant to
this Article 8 may elect to have the right to indemnification or reimbursement
or advancement of expenses interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or
advancement of expenses is sought. Such election shall be made, by a notice in
writing to the Corporation, at the time indemnification or reimbursement or
<PAGE>
34
advancement of expenses is sought; provided, however, that if no such notice is
given, the right to indemnification or reimburse ment or advancement of expenses
shall be determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 Books and Records. There shall be kept at the principal office of
the Corporation correct and complete records and books of account recording the
financial transactions of the Corporation and minutes of the proceedings of the
stockholders, the Board and any committee of the Board. The Corporation shall
keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape,
<PAGE>
35
photographs, microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible written form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
stockholders for inspection.
ARTICLE 10
SEAL
----
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and may be changed,
by resolution of the Board.
<PAGE>
36
ARTICLE 12
PROXIES AND CONSENTS
--------------------
Unless otherwise directed by the Board, the Chairman, the President,
any Vice President, the Secretary or the Treasurer, or any one of them, may
execute and deliver on behalf of the Corporation proxies respecting any and all
shares or other ownership interests of any Other Entity owned by the Corporation
appointing such person or persons as the officer executing the same shall deem
proper to represent and vote the shares or other ownership interests so owned at
any and all meetings of holders of shares or other ownership interests, whether
general or special, and/or to execute and deliver consents respecting such
shares or other ownership interests; or any of the aforesaid officers may attend
any meeting of the holders of shares or other ownership interests of such Other
Entity and thereat vote or exercise any or all other powers of the Corporation
as the holder of such shares or other ownership interests.
ARTICLE 13
EMERGENCY BY-LAWS
-----------------
Unless the Certificate of Incorporation provides otherwise, the
following provisions of this Article 13 shall be effective during an emergency,
which is defined as when a quorum of the Corporation's Directors cannot be
readily assembled because of some catastrophic event. During such emergency:
13.1 Notice to Board Members. Any one member of the Board or any one
of the following officers: Chairman, President, any Vice President, Secretary,
or Treasurer, may call a meeting of the Board. Notice of such meeting need be
given
<PAGE>
37
only to those Directors whom it is practicable to reach, and may be given in any
practical manner, including by publication and radio. Such notice shall be given
at least six hours prior to commencement of the meeting.
13.2 Temporary Directors and Quorum. One or more officers of the
Corporation present at the emergency Board meeting, as is necessary to achieve a
quorum, shall be considered to be Directors for the meeting, and shall so serve
in order of rank, and within the same rank, in order of seniority. In the event
that less than a quorum of the Directors are present (including any officers who
are to serve as Directors for the meeting), those Directors present (including
the officers serving as Directors) shall constitute a quorum.
13.3 Actions Permitted To Be Taken. The Board as constituted in
Section 13.2, and after notice as set forth in Section 13.1 may:
13.3.1 prescribe emergency powers to any officer of the
Corporation;
13.3.2 delegate to any officer or Director, any of the
powers of the Board;
13.3.3 designate lines of succession of officers and agents,
in the event that any of them are unable to discharge their duties;
13.3.4 relocate the principal place of business, or
designate successive or simultaneous principal places of business; and
13.3.5 take any other convenient, helpful or necessary
action to carry on the business of the Corporation.
<PAGE>
38
ARTICLE 14
AMENDMENTS
----------
These By-laws may be amended or repealed and new By-laws may be
adopted by a vote of the holders of shares entitled to vote in the election of
Directors or by the Board. Any By-laws adopted or amended by the Board may be
amended or repealed by the Stockholders entitled to vote thereon.
Page 1
32010 BOOK 0607 PAGE 473
STATE OF DELAWARE
[STATE INSIGNIA]
Office of Secretary of State
------------------------------------
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF HKID 29 INC. FILED IN THIS OFFICE ON THE THIRTIETH DAY OF
SEPTEMBER, A.D. 1987, AT 10 O'CLOCK A.M.
| | | | | | | | | |
[SEAL OF THE DEPARTMENT OF STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE]
727273029
/s/ Michael Harkins
------------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: |1417860
DATE: 09/30/1987
<PAGE>
FILED
SEP 30 1987
CERTIFICATE OF INCORPORATION
OF /s/ Michael Harkins
HKID 29 Inc. -------------------
SECRETARY OF STATE
1. The name of the corporation is HKID 29 Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall
have authority to issue is One Thousand (1,000), all of which shares shall be
without par value.
5. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors need not be by
written ballot.
6. The name and mailing address of the incorpotator is:
Yoshihisa Kainuma
c/o Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
I, THE UNDERSIGNED, being the incorporator herein before named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 28th day of September, 1987.
/s/ Yoshihisa Kainuma
---------------------------------
Yoshihisa Kainuma
I51513.33/2-2
RECEIVED FOR RECORD
OCT 02 1987
William M. Honey, Recorder
PAGE 1
State of Delaware
Office of the Secretary of State
------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "FAR-B ACQUISITION CORP.", FILED IN THIS OFFICE ON THE FIRST
DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[STATE INSIGNIA]
/s/ Edward J. Freel
[SEAL OF THE SECRETARY'S --------------------------------------
OFFICE OF DELAWARE] Edward J. Freel, Secretary of State
2588121 8100 AUTHENTICATION: 7812236
960030742 DATE: 02-01-96
<PAGE>
CERTIFICATE OF INCORPORATION
of
FAR-B ACQUISITION CORP.
The undersigned incorporator, in order to form a corporation under
the General Corporation Law of the State of Delaware (the "General Corporation
Law"), certifies as follows:
1. Name. The name of the corporation is FAR-B ACQUISITION CORP. (the
"Corporation").
2. Address; Registered Office and Agent. The address of the
Corporation's registered office is 1013 Centre Road, City of Wilmington, County
of New Castle, State of Delaware; and its registered agent at such address is
The Prentice-Hall Corporation System, Inc.
3. Purposes. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law.
4. Number of Shares. The total number of shares of stock that the
Corporation shall have authority to issue is: One Thousand (1,000), all of which
shall be shares of Common Stock of the par value of One Dollar ($1.00) each.
5. Name and Mailing Address of Incorporator. The name and mailing
address of the incorporator are:
<PAGE>
James L. Purcell, 1285 Avenue of the Americas, New York, New York 10019-6064.
6. Election of Directors. Members of the Board of Directors of the
Corporation (the "Board") may be elected either by written ballot or by voice
vote.
7. Limitation of Liability. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the General Corporation Law
or (d) for any transaction from which the director derived any improper personal
benefits.
Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
8. Indemnification.
8.1 To the extent not prohibited by law, the Corporation shall
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending
2
<PAGE>
or completed action, suit or proceeding (a "Proceeding"), whether civil,
criminal, administrative or investigative, including, without limitation, an
action by or in the right of the Corporation to procure a judgment in its favor,
by reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a director or officer of the Corporation, or, at
the request of the Corporation, is or was serving as a director or officer of
any other corporation or in a capacity with comparable authority or
responsibilities for any partnership, joint venture, trust, employee benefit
plan or other enterprise (an "Other Entity"), against judgments, fines,
penalties, excise taxes, amounts paid in settlement and costs, charges and
expenses (including attorneys' fees, disbursements and other charges). Persons
who are not directors or officers of the Corporation (or otherwise entitled to
indemnification pursuant to the preceding sentence) may be similarly indemnified
in respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board at any time specifies that such persons
are entitled to the benefits of this Section 8.
8.2 The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to indemnification
hereunder the funds
3
<PAGE>
necessary for payment of expenses, including attorneys' fees and disbursements,
incurred in connection with any Proceeding, in advance of the final disposition
or such Proceeding; provided, however, that, if required by the General
Corporation Law, such expenses incurred by or on behalf of any director or
officer or other person may be paid in advance of the final disposition of a
Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such director or officer (or other person indemnified hereunder), to
repay any such amount so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right of appeal that such
director, officer or other person is not entitled to be indemnified for such
expenses.
8.3 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Certificate of Incorporation, the
By-laws of the Corporation (the "By-laws"), any agreement, any vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
4
<PAGE>
8.4 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall continue as to a person who has ceased to be a director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
8.5 The Corporation shall have power to purchase and maintain
insurance on behalf of any person who 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 an Other Entity, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Section 8, the By-laws or under section 145 of the
General Corporation Law or any other provision of law.
8.6 The provisions of this Section 8 shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Section 8 is in effect and any
other person entitled to indemnification hereunder, on the other hand, pursuant
to which the Corporation and each such director,
5
<PAGE>
officer, or other person intend to be, and shall be, legally bound. No repeal or
modification of this Section 8 shall affect any rights or obligations with
respect to any state of facts then or theretofore existing or thereafter arising
or any proceeding theretofore or thereafter brought or threatened based in whole
or in part upon any such state of facts.
8.7 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
The burden of proving that such indemnification or reimbursement or advancement
of expenses is not appropriate shall be on the Corporation. Neither the failure
of the Corporation (including its Board, its independent legal counsel and its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so
6
<PAGE>
entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
8.8 Any director or officer of the Corporation serving in any
capacity (a) another corporation of which a majority of the shares entitled to
vote in the election of its directors is held, directly or indirectly, by the
Corporation or (b) any employee benefit plan of the Corporation or any
corporation referred to in clause (a) shall be deemed to be doing so at the
request of the Corporation.
8.9 Any person entitled to be indemnified or to reimbursement
or advancement of expenses as a matter of right pursuant to this Section 8 may
elect to have the right to indemnification or reimbursement or advancement of
expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses
7
<PAGE>
is sought; provided, however, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement
of expenses is sought.
9. Adoption, Amendment and/or Repeal of By-Laws. The Board may from
time to time adopt, amend or repeal the By-laws of the Corporation; provided,
however, that any By-laws adopted or amended by the Board may be amended or
repealed, and any By-laws may be adopted, by the stockholders of the Corporation
by vote of a majority of the holders of shares of stock of the Corporation
entitled to vote in the election of directors of the Corporation.
WITNESS the signature of this Certificate this 31st day of January,
1996.
/s/ James L. Purcell
--------------------------
James L. Purcell
Incorporator
8
State of Delaware PAGE 1
Office of the Secretary of State
------------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "FARBERWARE INC.", CHANGING ITS NAME FROM "FARBERWARE INC." TO "BRUCKNER
MANUFACTURING CORP.", FILED IN THIS OFFICE ON THE TWELFTH DAY OF APRIL, A.D.
1996, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ Edward J. Freel
--------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7905043
DATE: 04-12-96
2139322 8100
96010590
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FARBERWARE INC
---------------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
---------------------------------------------
Farberware Inc., a Delaware corporation (the "Corporation") does
hereby certify that the Certificate of Incorporation of the Corporation is
hereby amended by changing Article FIRST thereof so that, as amended, said
Article shall read in its entirety as follows:
1. The name of the corporation is: BRUCKNER MANUFACTURING CORP.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be executed in its corporate name by its Vice President and attested by its
Assistant Secretary this 2nd day of April, 1996.
FARBERWARE INC.
By: /s/ George H. MacLean
-----------------------------
George H. MacLean
Vice President
ATTEST:
/s/ Steven C. Barre
- ------------------------
Steven C. Barre
Assistant Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILE 09:00 AM 04/12/1996
960105902 - 2139322
State of Delaware PAGE 1
Office of the Secretary of State
-------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "FAR-B ACQUISITION CORP.", CHANGING ITS NAME FROM "FAR-B ACQUISITION CORP."
TO "FARBERWARE INC.", FILED ON THIS OFFICE ON THE TWELFTH DAY OF APRIL, A.D.
1996 AT 9:01 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
[STATE INSIGNIA]
[SEAL OF THE SECRETARY'S /s/ Edward J. Freel
OFFICE OF DELAWARE] ------------------------------------
2588121 8100 Edward J. Freel, Secretary of State
960105906
AUTHENTICATION: 7905052
DATE: 04-12-96
2588121 8100
960105906
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:01 AM 04/12/1996
960105906 - 2588121
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
FAR-B ACQUISITION CORP.
-----------------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
-----------------------------------------------
Far-B Acquisition Corp. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware, by E.
Merle Randolph its Vice President, Treasurer and Chief Financial Officer, does
hereby certify as follows:
FIRST: Article 1 of the Corporation's Certificate of Incorporation
is hereby amended by deleting in its entirety the present Article I and
substituting in lieu thereof the following new Article I:
1. Name. The name of the corporation is FARBERWARE INC. (the
"Corporation").
SECOND: The foregoing amendment was duly adopted in accordance with
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this Certificate of Amendment has been signed as
of the 10th day of April, 1996.
/s/ E. Merle Randolph
------------------------------------
Name: E. Merle Randolph
Title: Vice President, Treasurer and
Chief Financial Officer
BY-LAWS
of
FARBERWARE INC.
(A Delaware Corporation)
---------------------------------
ARTICLE 1
---------
DEFINITIONS
-----------
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Chairman" means the Chairman of the Board of Directors of the
Corporation.
1.7 "Corporation" means FAR-B ACQUISITION CORP.
1.8 "Directors" means directors of the Corporation.
<PAGE>
2
1.9 "Entire Board" means all directors of the Corporation in office,
whether or not present at a meeting of the Board, but disregarding vacancies.
1.10 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.11 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Stockholders" means stockholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
---------
STOCKHOLDERS
------------
2.1 Place of Meetings. Every meeting of stockholders shall be held
at the office of the Corporation or at such other place within or without the
State of Delaware as shall be specified or fixed in the notice of such meeting
or in the waiver of notice thereof.
<PAGE>
3
2.2 Annual Meeting. A meeting of stockholders shall be held annually
for the election of Directors and the transaction of other business at such hour
and on such business day in May or June or as may be determined by the Board and
designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of stockholders for the election of Directors and the transaction of
other business is not held within the months specified in Section 2.2 hereof,
the Board shall call a meeting of stockholders for the election of Directors and
the transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other
than a special meeting for the election of Directors), unless otherwise
prescribed by statute, may be called at any time by the Board or by the
President or by the Secretary. At any special meeting of stockholders only such
business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section 2.6 hereof or
in any waiver of notice thereof given pursuant to Section 2.7 hereof.
2.5 Fixing Record Date. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, (ii) unless otherwise provided in the Certificate of
Incorporation to express consent to corporate action in
<PAGE>
4
writing without a meeting or (iii) 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 (b) any other lawful
action, the Board may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date was adopted by the Board
and which record date shall not be (x) in the case of clause (a) (i) above, more
than sixty nor less than ten days before the date of such meeting, (y) in the
case of clause (a) (ii) above, more than 10 days after the date upon which the
resolution fixing the record date was adopted by the Board and (z) in the case
of clause (a) (iii) or (b) above, more than sixty days prior to such action. If
no such record date is fixed:
2.5.1 the record date for determining Stockholders entitled to
notice of or to vote at a meeting of stockholders 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;
2.5.2 the record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting (unless
otherwise provided in the Certificate of Incorporation), when no prior
action by the Board is required under the General
<PAGE>
5
Corporation Law, shall be the first day on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded; and when prior action by the Board is required
under the General Corporation Law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board
adopts the resolution taking such prior action; and
2.5.3 the record date for determining stockholders for any
purpose other than those specified in Sections 2.5.1 and 2.5.2 shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting. Delivery made to the Corporation's
registered office in accordance with
<PAGE>
6
Section 2.5.2 shall be by hand or by certified or registered mail, return
receipt requested.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided
in Sections 2.5 and 2.7 hereof, whenever under the provisions of any statute,
the Certificate of Incorporation or these By-laws, Stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
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 any statute, the Certificate of Incorporation or these By-laws, a
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten nor more than sixty days before the date of the meeting, to each
Stockholder entitled to notice of or to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
with postage prepaid, directed to the Stockholder at his or her address as it
appears on the records of the Corporation. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the Corporation that the notice
required by this Section 2.6 has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
<PAGE>
7
adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally called.
If, however, the adjournment is for more than thirty 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 at the meeting.
2.7 Waivers of Notice. Whenever the giving of any notice is required
by statute, the Certificate of Incorporation or these By-laws, a waiver thereof,
in writing, signed by the Stockholder or Stockholders entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Stockholder at a meeting shall
constitute a waiver of notice of such meeting except when the Stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders need be
specified in any written waiver of notice unless so required by statute, the
Certificate of Incorporation or these By-laws.
2.8 List of Stockholders. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
Stockholders, a complete
<PAGE>
8
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, the Stockholder's agent, or attorney, at the
Stockholder's expense, 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 Stockholder who is present. The Corporation shall maintain the
Stockholder list in written form or in another form capable of conversion into
written form within a reasonable time. Upon the willful neglect or refusal of
the Directors to produce such a list at any meeting for the election of
Directors, they shall be ineligible for election to any office at such meeting.
The stock ledger shall be the only evidence as to who are the Stockholders
entitled to examine the stock ledger, the list of Stockholders or the books of
the Corporation, or to vote in person or by proxy at any meeting of
Stockholders.
2.9 Quorum of Stockholders; Adjournment. Except as otherwise
provided by any statute, the Certificate of
<PAGE>
9
Incorporation or these By-laws, the holders of one-third of all outstanding
shares of stock entitled to vote at any meeting of Stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of Stockholders, it is not broken by the subsequent withdrawal of any
Stockholders. The holders of a majority of the shares of stock present in person
or represented by proxy at any meeting of Stockholders, including an adjourned
meeting, whether or not a quorum is present, may adjourn such meeting to another
time and place. 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.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate
of Incorporation, every Stockholder of record shall be entitled at every meeting
of Stockholders to one vote for each share of capital stock standing in his or
her name on the record of Stockholders determined in accordance with Section 2.5
hereof. If the Certificate of
<PAGE>
10
Incorporation provides for more or less than one vote for any share on any
matter, each reference in the By-laws or the General Corporation Law to a
majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock. The provisions of Sections 212 and 217 of
the General Corporation Law shall apply in determining whether any shares of
capital stock may be voted and the persons, if any, entitled to vote such
shares; but the Corporation shall be protected in assuming that the persons in
whose names shares of capital stock stand on the stock ledger of the Corporation
are entitled to vote such shares. Holders of redeemable shares of stock are not
entitled to vote after the notice of redemption is mailed to such holders and a
sum sufficient to redeem the stocks has been deposited with a bank, trust
company, or other financial institution under an irrevocable obligation to pay
the holders the redemption price on surrender of the shares of stock. At any
meeting of Stockholders (at which a quorum was present to organize the meeting),
all matters, except as otherwise provided by statute or by the Certificate of
Incorporation or by these By-laws, shall be decided by a majority of the votes
cast at such meeting by the holders of shares present in person or represented
by proxy and entitled to vote thereon, whether or not a quorum is present when
the vote is taken. All elections of Directors shall be by written ballot unless
otherwise provided in
<PAGE>
11
the Certificate of Incorporation. In voting on any other question on which a
vote by ballot is required by law or is demanded by any Stockholder entitled to
vote, the voting shall be by ballot. Each ballot shall be signed by the
Stockholder voting or the Stockholder's proxy and shall state the number of
shares voted. On all other questions, the voting may be viva voce. 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 such Stockholder by proxy. The validity and
enforceability of any proxy shall be determined in accordance with Section 212
of the General Corporation Law. A Stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in accordance
with applicable law bearing a later date to the Secretary.
2.11 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. The Board, in advance of any meeting of Stockholders, may appoint
one or more inspectors to act at the meeting and make a written report thereof.
The Board may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate has been appointed
or is able to act at a meeting, the person presiding at the meeting may appoint,
and on the request of any Stockholder entitled to
<PAGE>
12
vote thereat shall appoint, one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of 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 (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 their determination of the
number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of their duties. Unless otherwise
provided by the Board, 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 determined by the person presiding at the meeting and shall be announced at
the meeting. No ballot, proxies or votes, or any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery of the State of Delaware upon application by a
Stockholder shall determine otherwise.
<PAGE>
13
2.12 Organization. At each meeting of Stockholders, the President,
or in the absence of the President, the Chairman, or if there is no Chairman or
if there be one and the Chairman is absent, a Vice President, and in case more
than one Vice President shall be present, that Vice President designated by the
Board (or in the absence of any such designation, the most senior Vice
President, based on age, present), shall act as chairman of the meeting. The
Secretary, or in his or her absence one of the Assistant Secretaries, shall act
as secretary of the meeting. In case none of the officers above designated to
act as chairman or secretary of the meeting, respectively, shall be present, a
chairman or a secretary of the meeting, as the case may be, shall be chosen by a
majority of the votes cast at such meeting by the holders of shares of capital
stock present in person or represented by proxy and entitled to vote at the
meeting.
2.13 Order of Business. The order of business at all meetings of
Stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless
otherwise provided in the Certificate of
<PAGE>
14
Incorporation, any action required by the General Corporation Law to be taken at
any annual or special meeting of 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 and shall be delivered (by hand or by
certified or registered mail, return receipt requested) to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated consent
delivered in the manner required by this Section 2.14, written consents signed
by a sufficient number of holders to take action are delivered to the
Corporation as aforesaid. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
Stockholders who have not consented in writing.
<PAGE>
15
ARTICLE 3
---------
Directors
---------
3.1 General Powers. Except as otherwise provided in the Certificate
of Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or these
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by these By-laws, the Board may exercise all powers and
perform all acts that are not required, by these By-laws or the Certificate of
Incorporation or by statute, to be exercised and performed by the Stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist
of one or more members. The number of Directors shall be fixed initially by the
incorporator and may thereafter be changed from time to time by action of the
stockholders or by action of the Board. Directors need not be stockholders. Each
Director shall hold office until a successor is elected and qualified or until
the Director's death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by
statute or by the Certificate of Incorporation, be elected by a plurality of the
votes cast
<PAGE>
16
at a meeting of stockholders by the holders of shares entitled to vote in the
election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise
provided in the Certificate of Incorporation, newly created Directorships
resulting from an increase in the number of Directors and vacancies occurring in
the Board for any other reason, including the removal of Directors without
cause, may be filled by the affirmative votes of a majority of the entire Board,
although less than a quorum, or by a sole remaining Director, or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A Director elected to fill a vacancy shall be elected to hold
office until a successor is elected and qualified, or until the Director's
earlier death, resignation or removal.
3.5 Resignation. Any Director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified in such resignation, the
acceptance of such resignation shall not be necessary to make it effective.
3.6 Removal. Subject to the provisions of Section 141(k) of the
General Corporation Law, any or all of the Directors may be removed with or
without cause by vote
<PAGE>
17
of the holders of a majority of the shares then entitled to vote at an
election of Directors.
3.7 Compensation. Each Director, in consideration of his or her
service as such, shall be entitled to receive from the Corporation such amount
per annum or such fees for attendance at Directors' meetings, or both, as the
Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in
connection with the performance of his or her duties. Each Director who shall
serve as a member of any committee of Directors in consideration of serving as
such shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any, incurred by such Director in the performance of his or her
duties. Nothing contained in this Section 3.7 shall preclude any Director from
serving the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
3.8 Times and Places of Meetings. The Board may hold meetings, both
regular and special, either within or without the State of Delaware. The times
and places for holding meetings of the Board may be fixed from time to time by
resolution of the Board or (unless contrary to a resolution of the Board) in the
notice of the meeting.
<PAGE>
18
3.9 Annual Meetings. On the day when and at the place where the
annual meeting of stockholders for the election of Directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 hereof for special meetings of the Board or in a waiver of
notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held
without notice at such times and at such places as shall from time to time be
determined by the Board.
3.11 Special Meetings. Special meetings of the Board may be called
by the Chairman, the President or the Secretary or by any two or more Directors
then serving on at least one day's notice to each Director given by one of the
means specified in Section 3.l4 hereof other than by mail, or on at least three
days' notice if given by mail. Special meetings shall be called by the Chairman,
President or Secretary in like manner and on like notice on the written request
of any two or more of the Directors then serving.
3.12 Telephone Meetings. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of such
committee by means of
<PAGE>
19
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 Section 3.12 shall constitute presence in person at
such meeting.
3.13 Adjourned Meetings. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least one day's
notice of any adjourned meeting of the Board shall be given to each Director
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 3.14 hereof other than by mail,
or at least three days' notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as originally
called.
3.14 Notice Procedure. Subject to Sections 3.11 and 3.17 hereof,
whenever, under the provisions of any statute, the Certificate of Incorporation
or these By-laws, notice is required to be given to any Director, such notice
shall be deemed given effectively if given in person or by telephone, by mail
addressed to such Director at such Director's address as it appears on the
records of the Corporation, with postage thereon prepaid, or by telegram, telex,
telecopy or similar means addressed as aforesaid.
<PAGE>
20
3.15 Waiver of Notice. Whenever the giving of any notice is required
by statute, the Certificate of Incorporation or these By-laws, a waiver thereof,
in writing, signed by the person or persons entitled to said notice, whether
before or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by 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 on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Directors or a committee of Directors
need be specified in any written waiver of notice unless so required by statute,
the Certificate of Incorporation or these Bylaws.
3.16 Organization. At each meeting of the Board, the Chairman, or in
the absence of the Chairman the President, or in the absence of the President a
chairman chosen by a majority of the Directors present, shall preside. The
Secretary shall act as secretary at each meeting of the Board. In case the
Secretary shall be absent from any meeting of the Board, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all
<PAGE>
21
Assistant Secretaries, the person presiding at the meeting may appoint any
person to act as secretary of the meeting.
3.17 Quorum of Directors. The presence in person of a majority of
the entire Board shall be necessary and sufficient to constitute a quorum for
the transaction of business at any meeting of the Board, but a majority of a
smaller number may adjourn any such meeting to a later date.
3.18 Action by Majority Vote. Except as otherwise expressly required
by statute, the Certificate of Incorporation or these By-laws, the act of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board.
3.19 Action Without Meeting. 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 or of any committee thereof may be taken
without a meeting if all Directors or members of such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE 4
---------
COMMITTEES OF THE BOARD
-----------------------
The Board may, by resolution passed by a vote of a majority of the
entire Board, designate one or more committees, each committee to consist of one
or more of the Directors of the Corporation. The Board may designate one
<PAGE>
22
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of such committee. If a member of a
committee shall be absent from any meeting, or disqualified from voting thereat,
the remaining member or members present and not disqualified from voting,
whether or not such member or members constitute a quorum, may, by a unanimous
vote, appoint another member of the Board to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board passed as aforesaid, shall have and may
exercise all the powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be impressed on all papers that may require it, but no such
committee shall have the power or authority of the Board in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation under section 251 or section 252 of the General Corporation Law,
recommending to the stockholders (a) the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, or (b) a dissolution
of the Corporation or a revocation of a dissolution, or amending the By-laws of
the Corporation; and, unless the resolution designating it expressly so
provides, no such committee shall have the power and authority to declare a
dividend, to authorize the issuance
<PAGE>
23
of stock or to adopt a certificate of ownership and merger pursuant to Section
253 of the General Corporation Law. Unless otherwise specified in the resolution
of the Board designating a committee, at all meetings of such committee a
majority of the total number of members of the committee shall constitute a
quorum for the transaction of business, and the vote of a majority of the
members of the committee present at any meeting at which there is a quorum shall
be the act of the committee. Each committee shall keep regular minutes of its
meetings. Unless the Board otherwise provides, each committee designated by the
Board 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 conducts its business pursuant to Article 3 of these
By-laws.
ARTICLE 5
---------
OFFICERS
--------
5.1 Positions. The officers of the Corporation shall be a President,
a Secretary, a Treasurer and such other officers as the Board may appoint,
including a Chairman, one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers, who shall exercise such powers and perform
such duties as shall be determined from time to time by the Board. The Board may
designate one or more Vice Presidents as Executive Vice Presidents and may use
descriptive words or phrases to
<PAGE>
24
designate the standing, seniority or areas of special competence of the Vice
Presidents elected or appointed by it. Any number of offices may be held by the
same person unless the Certificate of Incorporation or these By-laws otherwise
provide.
5.2 Appointment. The officers of the Corporation shall be chosen by
the Board at its annual meeting or at such other time or times as the Board
shall determine.
5.3 Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that the officer
is also a Director.
5.4 Term of Office. Each officer of the Corporation shall hold
office for the term for which he or she is elected and until such officer's
successor is chosen and qualifies or until such officer's earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. Such resignation shall take effect at the date of receipt of
such notice or at such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any. Any officer elected or appointed by
the Board may be removed at any
<PAGE>
25
time, with or without cause, by vote of a majority of the entire Board. Any
vacancy occurring in any office of the Corporation shall be filled by the Board.
The removal of an officer without cause shall be without prejudice to the
officer's contract rights, if any. The election or appointment of an officer
shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any
or all of its officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been appointed, shall
preside at all meetings of the Board and shall exercise such powers and perform
such other duties as shall be determined from time to time by the Board.
5.7 President. The President shall be the Chief Executive Officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of Directors. The President shall preside at all meetings
of the Stockholders and at all meetings of the Board at which the Chairman (if
there be one) is not present. The President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts and other instruments except
in cases in which the signing and execution thereof shall be expressly delegated
by the Board or by these By-laws to some other officer or agent of the
<PAGE>
26
Corporation or shall be required by statute otherwise to be signed or executed
and, in general, the President shall perform all duties incident to the office
of President of a corporation and such other duties as may from time to time be
assigned to the President by the Board.
5.8 Vice Presidents. At the request of the President, or, in the
President's absence, at the request of the Board, the Vice Presidents shall (in
such order as may be designated by the Board or, in the absence of any such
designation, in order of seniority based on age) perform all of the duties of
the President and, in so performing, shall have all the powers of, and be
subject to all restrictions upon, the President. Any Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall be expressly delegated by the Board or by these By-laws to some other
officer or agent of the Corporation, or shall be required by statute otherwise
to be signed or executed, and each Vice President shall perform such other
duties as from time to time may be assigned to such Vice President by the Board
or by the President.
5.9 Secretary. The Secretary shall attend all meetings of the Board
and of the Stockholders and shall record all the proceedings of the meetings of
the Board and of the stockholders in a book to be kept for that purpose,
<PAGE>
27
and shall perform like duties for committees of the Board, when required. The
Secretary shall give, or cause to be given, notice of all special meetings of
the Board and of the stockholders and shall perform such other duties as may be
prescribed by the Board or by the President, under whose supervision the
Secretary shall be. The Secretary shall have custody of the corporate seal of
the Corporation, and the Secretary, or an Assistant Secretary, shall have
authority to impress the same on any instrument requiring it, and when so
impressed the seal may be attested by the signature of the Secretary or by the
signature of such Assistant Secretary. The Board may give general authority to
any other officer to impress the seal of the Corporation and to attest the same
by such officer's signature. The Secretary or an Assistant Secretary may also
attest all instruments signed by the President or any Vice President. The
Secretary shall have charge of all the books, records and papers of the
Corporation relating to its organization and management, shall see that the
reports, statements and other documents required by statute are properly kept
and filed and, in general, shall perform all duties incident to the office of
Secretary of a corporation and such other duties as may from time to time be
assigned to the Secretary by the Board or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds,
<PAGE>
28
securities and notes of the Corporation; receive and give receipts for moneys
due and payable to the Corporation from any sources whatsoever; deposit all such
moneys and valuable effects in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board; against proper vouchers,
cause such funds to be disbursed by checks or drafts on the authorized
depositaries of the Corporation signed in such manner as shall be determined by
the Board and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books or other records
maintained for the purpose full and adequate account of all moneys received or
paid for the account of the Corporation; have the right to require from time to
time reports or statements giving such information as the Treasurer may desire
with respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board shall require the Treasurer so to do, an
account of the financial condition of the Corporation and of all financial
transactions of the Corporation; exhibit at all reasonable times the records and
books of account to any of the Directors upon application at the office of the
Corporation where such records and books are kept; disburse the funds of the
Corporation as ordered by the Board; and, in general, perform all duties
incident to the office of Treasurer of a
<PAGE>
29
corporation and such other duties as may from time to time be assigned to the
Treasurer by the Board or the President.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President.
ARTICLE 6
---------
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board, except as otherwise provided
in these By-laws, may prospectively or retroactively authorize any officer or
officers, employee or employees or agent or agents, in the name and on behalf of
the Corporation, to enter into any contract or execute and deliver any
instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
6.2 Loans. The Board may prospectively or retroactively authorize
the President or any other officer, employee or agent of the Corporation to
effect loans and advances at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual, and
for such loans and advances the person so authorized may make, execute and
deliver promissory notes, bonds or other certificates or evidences of
indebtedness of the Corporation, and, when authorized by
<PAGE>
30
the Board so to do, may pledge and hypothecate or transfer any securities or
other property of the Corporation as security for any such loans or advances.
Such authority conferred by the Board may be general or confined to specific
instances, or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all evidences of
indebtedness of the Corporation shall be signed on behalf of the Corporation in
such manner as shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation with such
banks, trust companies, investment banking firms, financial institutions or
other depositaries as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power to select may from time
to time be delegated by the Board.
ARTICLE 7
---------
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by
<PAGE>
31
the Chairman, the President or a Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer, and may be
impressed with the seal of the Corporation 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 registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by the holder's duly authorized attorney appointed by a power of
attorney duly executed and filed with the Secretary or a transfer agent of the
Corporation, and on surrender of the certificate or certificates representing
such shares of capital stock properly endorsed for transfer and upon payment of
all necessary transfer taxes. Every certificate exchanged, returned or
surrendered to the Corporation shall be marked "Cancelled" with the date of
cancellation, by the
<PAGE>
32
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer shall have been entered on the books of the Corporation by an
entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed,
<PAGE>
33
stolen or mutilated certificate, or his or her legal representatives, to make
proof satisfactory to the Board of such loss, destruction, theft or mutilation
and to advertise such fact in such manner as the Board may require, and to give
the Corporation and its transfer agents and registrars, or such of them as the
Board may require, a bond in such form, in such sums and with such surety or
sureties as the Board may direct, to indemnify the Corporation and its transfer
agents and registrars against any claim that may be made against any of them on
account of the continued existence of any such certificate so alleged to have
been lost, destroyed, stolen or mutilated and against any expense in connection
with such claim.
7.5 Rules and Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws or
with the Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder,
<PAGE>
34
including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
Unless noted conspicuously on the certificate representing such capital stock, a
restriction, even though permitted by Section 202 of the General Corporation
Law, shall be ineffective except against a person with actual knowledge of the
restriction. A restriction on the transfer or registration of transfer of
capital stock of the Corporation may be imposed either by the Certificate of
Incorporation or by an agreement among any number of stockholders or among such
stockholders and the Corporation. No restriction so imposed shall be binding
with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such amounts
and at such time or times as it, in its discretion, shall deem advisable
giving due consideration to the condition of the affairs of the
Corporation;
<PAGE>
35
7.7.2 may use and apply, in its discretion, any of the surplus
of the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants therefor, in accordance with law,
or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness; and
7.7.3 may set aside from time to time out of such surplus or
net profits such sum or sums as, in its discretion, it may think proper,
as a reserve fund to meet contingencies, or for equalizing dividends or
for the purpose of maintaining or increasing the property or business of
the Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
ARTICLE 8
---------
INDEMNIFICATION
---------------
8.1 Indemnity Undertaking. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed action, suit or proceeding
(a "Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the
<PAGE>
36
legal representative, is or was a Director or officer of the Corporation, or, at
the request of the Corporation, is or was serving as a director or officer of
any other corporation or in a capacity with comparable authority or
responsibilities for any partnership, joint venture, trust, employee benefit
plan or other enterprise (an "Other Entity"), against judgments, fines,
penalties, excise taxes, amounts paid in settlement and costs, charges and
expenses (including attorneys' fees, disbursements and other charges). Persons
who are not directors or officers of the Corporation (or otherwise entitled to
indemnification pursuant to the preceding sentence) may be similarly indemnified
in respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board at any time specifies that such persons
are entitled to the benefits of this Article 8.
8.2 Advancement of Expenses. The Corporation shall, from time to
time, reimburse or advance to any Director or officer or other person entitled
to indemnification hereunder the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in connection with any
Proceeding, in advance of the final disposition of such Proceeding; provided,
however, that, if required by the General Corporation Law, such expenses
incurred by or on behalf of any Director or officer or other person may be paid
in advance of the final
<PAGE>
37
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such Director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 Rights Not Exclusive. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, the Certificate of
Incorporation, these By-laws, any agreement, any vote of stockholders or
disinterested Directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
8.4 Continuation of Benefits. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall continue as to a person who has ceased to be a Director or
officer (or other person indemnified hereunder) and shall inure to the benefit
of the executors, administrators, legatees and distributees of such person.
<PAGE>
38
8.5 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who 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 an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article 8, the Certificate of
Incorporation or under section 145 of the General Corporation Law or any other
provision of law.
8.6 Binding Effect. The provisions of this Article 8 shall be a
contract between the Corporation, on the one hand, and each Director and officer
who serves in such capacity at any time while this Article 8 is in effect and
any other person entitled to indemnification hereunder, on the other hand,
pursuant to which the Corporation and each such Director, officer or other
person intend to be, and shall be legally bound. No repeal or modification of
this Article 8 shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
<PAGE>
39
8.7 Procedural Rights. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that such indemnification
or reimbursement or advancement of expenses is proper in the circumstances nor
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of expenses
shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified for any
expenses incurred in connection with successfully establishing his or her right
to such indemnification or reimbursement or advancement of expenses, in whole or
in part, in any such proceeding.
8.8 Service Deemed at Corporation's Request. Any Director or officer
of the Corporation serving in any
<PAGE>
40
capacity (a) another corporation of which a majority of the shares entitled to
vote in the election of its directors is held, directly or indirectly, by the
Corporation or (b) any employee benefit plan of the Corporation or any
corporation referred to in clause (a) shall be deemed to be doing so at the
request of the Corporation.
8.9 Election of Applicable Law. Any person entitled to be
indemnified or to reimbursement or advancement of expenses as a matter of right
pursuant to this Article 8 may elect to have the right to indemnification or
reimbursement or advancement of expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events
giving rise to the applicable Proceeding, to the extent permitted by law, or on
the basis of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be made,
by a notice in writing to the Corporation, at the time indemnification or
reimbursement or advancement of expenses is sought; provided, however, that if
no such notice is given, the right to indemnification or reimbursement or
advancement of expenses shall be determined by the law in effect at the time
indemnification or reimbursement or advancement of expenses is sought.
<PAGE>
41
ARTICLE 9
---------
BOOKS AND RECORDS
-----------------
9.1 Books and Records. There shall be kept at the principal office
of the Corporation correct and complete records and books of account recording
the financial transactions of the Corporation and minutes of the proceedings of
the stockholders, the Board and any committee of the Board. The Corporation
shall keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what
<PAGE>
42
conditions and regulations, the accounts, books, minutes and other records of
the Corporation, or any of them, shall be open to the stockholders for
inspection.
ARTICLE 10
----------
SEAL
----
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
ARTICLE 11
----------
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and may be
changed, by resolution of the Board.
ARTICLE 12
----------
PROXIES AND CONSENTS
--------------------
Unless otherwise directed by the Board, the Chairman, the President,
any Vice President, the Secretary or the Treasurer, or any one of them, may
execute and deliver on behalf of the Corporation proxies respecting any and all
shares or other ownership interests of any Other Entity owned by the Corporation
appointing such person or persons as the officer executing the same shall deem
proper to represent and vote the shares or other ownership interests so owned at
any and all meetings of holders of
<PAGE>
43
shares or other ownership interests, whether general or special, and/or to
execute and deliver consents respecting such shares or other ownership
interests; or any of the aforesaid officers may attend any meeting of the
holders of shares or other ownership interests of such Other Entity and thereat
vote or exercise any or all other powers of the Corporation as the holder of
such shares or other ownership interests.
ARTICLE 13
----------
EMERGENCY BY-LAWS
-----------------
Unless the Certificate of Incorporation provides otherwise, the
following provisions of this Article 13 shall be effective during an emergency,
which is defined as when a quorum of the Corporation's Directors cannot be
readily assembled because of some catastrophic event. During such emergency:
13.1 Notice to Board Members. Any one member of the Board or any one
of the following officers: Chairman, President, any Vice President, Secretary,
or Treasurer, may call a meeting of the Board. Notice of such meeting need be
given only to those Directors whom it is practicable to reach, and may be given
in any practical manner, including by publication and radio. Such notice shall
be given at least six hours prior to commencement of the meeting.
13.2 Temporary Directors and Quorum. One or more officers of the
Corporation present at the emergency Board
<PAGE>
44
meeting, as is necessary to achieve a quorum, shall be considered to be
Directors for the meeting, and shall so serve in order of rank, and within the
same rank, in order of seniority. In the event that less than a quorum of the
Directors are present (including any officers who are to serve as Directors for
the meeting), those Directors present (including the officers serving as
Directors) shall constitute a quorum.
13.3 Actions Permitted To Be Taken. The Board as constituted in
Section 13.2, and after notice as set forth in Section 13.1 may:
13.3.1 prescribe emergency powers to any officer of the
Corporation;
13.3.2 delegate to any officer or Director, any of the powers
of the Board;
13.3.3 designate lines of succession of officers and agents,
in the event that any of them are unable to discharge their duties;
13.3.4 relocate the principal place of business, or designate
successive or simultaneous principal places of business; and
13.3.5 take any other convenient, helpful or necessary action
to carry on the business of the Corporation.
<PAGE>
45
ARTICLE 14
----------
AMENDMENTS
----------
These By-laws may be amended or repealed and new By-laws may be
adopted by a vote of the holders of shares entitled to vote in the election of
Directors or by the Board. Any By-laws adopted or amended by the Board may be
amended or repealed by the Stockholders entitled to vote thereon.
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 01:30 PM 04/10/1996
960103592 - 2612328
CERTIFICATE OF INCORPORATION
OF
Silvestri Acquisition Corporation
FIRST: The name of the corporation is Silvestri Acquisition Corporation.
SECOND: The registered office of the corporation in the State of
Delaware is located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805. The registered agent of the corporation at that address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The corporation shall have authority to issue One Thousand (1,000)
shares of common stock, having a par value of One Dollar ($1.00)
FIFTH: The corporation shall indemnify directors and officers of the
corporation to the fullest extent permitted by law.
SIXTH: The directors of the corporation shall incur no personal liability
to the corporation or its stockholders for
-1-
<PAGE>
monetary damages for any breach of fiduciary duty as a director; provided,
however, that the directors of the corporation shall continue to be subject to
liability (i) for any breach of their duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the directors derived an improper personal benefit.
SEVENTH: The business and affairs of the corporation shall be managed by
or under the direction of the board of directors, the number of members of which
shall be set forth in the bylaws of the corporation. The directors need not be
elected by ballot unless required by the bylaws of the corporation.
EIGHTH: The directors of the Corporation shall have the power to make and
to alter or amend the By-Laws; to fix the amount to be reserved as working
capital; and to authorize and cause to be executed, mortgages and liens,
without limit as to the amount, upon the property and franchise of the
Corporation.
The By-Laws shall determine whether and to what extent the accounts and
books of the Corporation, or any at them, shall be
-2-
<PAGE>
open to the inspection of the stockholders. No stockholder shall have any right
of inspecting any account, or book, or document of the Corporation, except as
conferred by the law or the By-Laws of the Corporation, or by resolution of the
stockholders.
The stockholders and directors shall have the power to hold meetings and
keep the books, documents and papers of the Corporation outside the State of
Delaware, at such places as may be from time to time designated by the By-Laws
of the Corporation or by resolution of the stockholders or directors, except as
otherwise required by the laws of the State of Delaware.
NINTH: The corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereinafter
prescribed by the laws of the State of Delaware. All rights herein conferred are
granted subject to this reservation.
TENTH: The name and address of the incorporator is Donna Juhrden, c/o
Duane1 Morris & Heckscher, 314 S. State Street, Dover, DE 19901.
ELEVENTH: The powers of the incorporator shall terminate upon the election
of directors.
-3-
<PAGE>
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware do make, file and record
this Certificate of Incorporation, do certify that the facts herein stated are
true, and, accordingly, have hereunto set my hand and seal this 10th day of
April, 1996.
/s/ Donna Juhrden (SEAL)
-----------------
-4-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/22/1996
960115135 - 2612328
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
Silvestri Acquisition Corporation
Silvestri Acquisition Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Silvestri
Acquisition Corporation, a resolution was duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Article thereof numbered "FIRST" so that, as amended
said Article shall be and read as follows:
The name of the corporation is Silvestri Corporation.
SECOND: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Silvestri Acquisition Corporation has caused this
certificate to be signed by Leonard Florence, its President and Faye A.
Florence, its Secretary, this 11th day of April, 1996.
By: /s/ Leonard Florence
------------------------------------
Leonard Florence, President
Attest: /s/ Faye A. Florence
------------------------------------
Faye A. Florence, Secretary
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:10 AM 05/15/1996
960140182 - 2612328
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
Silvestri Corporation
Silvestri Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Silvestri
Corporation, a resolution was duly adopted setting forth a proposed amendment to
the Certificate of Incorporation of said corporation, declaring said amendment
to be advisable. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Article thereof numbered "FIRST" so that, as amended
said Article shall be and read as follows:
The name of the corporation is Silvestri, Inc.
SECOND: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Silvestri Corporation has caused this certificate
to be signed by Leonard Florence, its President and Faye A. Florence, its
Secretary, this 15 day of May, 1996.
By: /s/ Leonard Florence
------------------------------------
Leonard Florence, President
Attest: /s/ Faye A. Florence
------------------------------------
Faye A. Florence, Secretary
Silvestri, Inc.
BYLAWS
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting.
--------------------------
An annual meeting of the stockholders of Silvestri Acquisition Corporation
(the "Corporation"), for the election of directors to succeed those whose terms
expire and for the transaction of such other business as may properly come
before the meeting, shall be held at such place, on such date, and at such time
as the Board of Directors shall each year fix, which date shall be within
thirteen months subsequent to the later of the date of incorporation o the last
annual meeting of stockholders.
Section 2. Special Meetings.
----------------------------
Special meetings of the stockholders, for any purpose or purposes
prescribed in the notice of the meeting, may be called by the Board of
Directors, the Chairman or the President or as otherwise provided by law or the
Certificate of Incorporation and shall be held at such place, on such date, and
at such time as they or he shall fix.
Section 3. Notice of Meetings.
------------------------------
Written notice of the place, date and time of all meetings of the
stockholders shall be given, not less than ten nor more than sixty days before
the date on which the meeting is to be held, to each stockholder entitled to
vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the Delaware
General
-1-
<PAGE>
Corporation Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty days
after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date, and
time of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. Quorum.
------------------
At any meeting of the stockholders, the holders of a majority of all of
the shares of the stock entitled to vote at the meeting, present in person or by
proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law.
If a quorum shall fail to attend any meeting, the Chairman of the meeting
or the holders of a majority of the shares of the stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place, date,
or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at
-2-
<PAGE>
such adjourned meeting shall constitute a quorum, and all matters shall be
determined by a majority of the votes cast at such meeting.
Section 5. Organization.
------------------------
Such person as the Board of Directors may have designated or, in the
absence of such a person, the President of the Corporation or, in his absence,
such person as may be chosen by the holders of a majority of the shares entitled
to vote who are present, in person or by proxy, shall call to order any meeting
of the stockholders and act as Chairman of the meeting. In the absence of the
Secretary of the Corporation, the Secretary of the meeting shall be such person
as the Chairman appoints.
Section 6. Conduct of Business.
-------------------------------
The Chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him in order.
Section 7. Proxies and Voting.
------------------------------
At any meeting of the stockholders, every stockholder entitled to vote may
vote in person or by proxy authorized by an instrument in writing filed in
accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock entitled to
vote which is registered in his name on the record date for the meeting, except
as otherwise provided herein or required by law.
-3-
<PAGE>
All voting, including on the election of directors, but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his proxy, a stock vote
shall be taken. Every stock vote shall be taken by ballots, each of which shall
state the name of the stockholder or proxy voting and such other information as
may be required under the procedure established for the meeting. Every vote
taken by ballots shall be counted by an inspector or inspectors appointed by the
Chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast.
Section 8. Stock List.
----------------------
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
name, shall be open to the examination of any such 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 the
meeting, or if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders
-4-
<PAGE>
entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Consent of Stockholders in Lieu of Meeting.
------------------------------------------------------
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 the stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent 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.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office.
-------------------------------------
The number of directors who shall constitute the whole board shall be such
number as the Board of Directors shall at the time have designated, except that
in the absence of any such designation, such number shall be one. Each director
shall be elected for a term of one year and until his successor is elected and
qualified, except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between annual
meetings of the stockholders, a majority of the directors then in office shall
have the power to elect such new directors for the balance of a term and until
their successors are elected and qualified. Any decrease in the authorized
number of
-5-
<PAGE>
directors shall not become effective until the expiration of the term of the
directors them in office unless, at the time of such decrease, there shall be
vacancies on the board which are being eliminated by the decrease.
Section 2. Vacancies.
---------------------
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal or other cause, a majority of the
directors remaining in office, although less than a quorum, may elect a
successor for the unexpired term and until his successor is elected and
qualified.
Section 3. Regular Meetings.
----------------------------
Regular meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
Section 4. Special Meetings.
----------------------------
Special meetings of the Board of Directors may be called by one-third of
the directors then in office (rounded up to the nearest whole number) or by the
President and shall be held at such place, on such date, and at such time as
they or he shall fix. Notice of the place, date, and time of each such special
meeting shall be given each director by whom it is not waived by mailing written
notice not less than five days before the meeting, by depositing such notice
with a nationally recognized overnight courier not less than three (3) days
before the meeting, or by telecopying or hand delivering the same not less than
twenty-four
-6-
<PAGE>
hours before the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
Section 5. Quorum.
------------------
At any meeting of the Board of Directors, a majority of the total number
of the whole board shall constitute a quorum for all purposes. If a quorum shall
fail to attend any meeting, a majority of those present may adjourn the meeting
to any place, date, or time, without further notice or waiver thereof.
Section 6. Participation in Meetings by Conference Telephone.
-------------------------------------------------------------
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
Section 7. Chairman of the Board.
---------------------------------
The Board of Directors shall elect, at its original meeting and each
annual meeting, a Chairman of the Board (the "Chairman") who shall be a director
and who shall hold office until the next annual meeting of the Board and until
his successor is elected and qualified or until his earlier resignation or
removal by act of the Board. The Chairman shall preside at meetings of the
stockholders and the Board. In the absence of the Chairman, the President shall
preside at meetings of the stockholders and the Board.
-7-
<PAGE>
Section 8. Conduct of Business.
-------------------------------
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as the board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law. Action may be taken by
the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
Section 9. Powers.
------------------
The Board of Directors may, except as otherwise required by law, exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, including, without limiting the generality of the foregoing,
the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time devolve the powers and duties of any officer upon any
other person for the time being;
-8-
<PAGE>
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the Corporation's business and affairs.
Section 10. Compensation of Directors.
--------------------------------------
Directors, as such, may receive, pursuant to resolution of the Board of
Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors.
------------------------------------------------
The Board of Directors, by a vote of a majority of the whole board, may
from time to time designate committees of the board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the board and shall, for those committees and any others provided for herein,
elect a director or
-9-
<PAGE>
directors to serve as the member or members, designating, if it desires, other
directors as alternate members who may replace any absent or disqualified member
at any meeting of the committee. Any committee so designated may exercise the
power and authority of the Board of Directors to declare a dividend or to
authorize the issuance of stock if the resolution which designates the committee
or a supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his place, the member or members of the committee present at the
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may be unanimous vote appoint another member of the Board of Directors
to act at the meeting in the place of the absent or disqualified member. The
Board of Directors may, from time to time, suspend, alter continue or terminate
any committee or the powers and functions thereof.
Section 2. Officers' Committees.
--------------------------------
Subject to the approval of the Board, the Chairman may appoint, or may
provide for the appointment of, committees consisting of officers or other
persons, with chairmanships, vice chairmanships and secretaryships and such
duties and powers as the Chairman may, from time to time, designate and
prescribe. The Board or the Chairman may, from time to time, suspend, alter,
continue or terminate any of such committees or the powers and functions
thereof.
-10-
<PAGE>
Section 3. Conduct of Business.
-------------------------------
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members shall constitute
a quorum unless the committee shall consist of one or two members, in which
event one member shall constitute a quorum; and all matters shall be determined
by a majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of such
committee.
ARTICLE IV - OFFICERS
Section 1. Generally.
---------------------
The officers of the Corporation shall consist of a President, one or more
Vice Presidents, a Secretary, a Treasurer and such other officers as may from
time to time be appointed by the Board of Directors. Officers shall be elected
by the Board of Directors which shall consider that subject at its first meeting
after every annual meeting of stockholders. Each officer shall hold office until
his successor is elected and qualified or until his earlier resignation or
removal. The President shall be a member of the Board of Directors. Any number
of offices may be held by the same person. One person may also have such other
titles as the Board of Directors may determine.
-11-
<PAGE>
Section 2. President.
---------------------
The President shall be the chief executive officer of the Corporation.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors, he shall have the responsibility for the general management and
control of the business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him by the Board of Directors. He shall have
power to sign all stock certificates, contracts and other instruments of the
Corporation which are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the Corporation.
Section 3. Vice President.
--------------------------
Each Vice President shall have such powers and duties as may be delegated
to him by the Board of Directors. One Vice President shall be designated by the
Board of Directors to perform the duties and exercise the powers of the
President in the event of the President's absence or disability. In the absence
of the Chairman and the President, any Vice President who is a director shall,
in the order prescribed by a resolution of the Board of Directors, preside at
meetings of the stockholders and the Board of Directors.
Section 4. Treasurer.
---------------------
The Treasurer shall have the responsibility for maintaining the financial
records of the Corporation and shall have custody of all monies and securities
of the Corporation. He shall make such disbursements of the funds of the
Corporation as are
-12-
<PAGE>
authorized and shall render from time to time an account of all such
transactions and of the financial condition of the Corporation. The Treasurer
shall also perform such other duties as the Board of Directors may from time to
time prescribe.
Section 5. Secretary.
---------------------
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. He
shall have charge of the corporate books and shall perform such other duties as
the Board of Directors may from time to time prescribe.
Section 6. Delegation of Authority.
-----------------------------------
The Board of Directors may from time to time delegate the powers or duties
of any officer to any other officers or agents, notwithstanding any provision
thereof.
Section 7. Removal.
-------------------
Any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
Section 8. Action with Respect to Securities of Other Corporations.
-------------------------------------------------------------------
Unless otherwise directed by the Board of Directors, the President shall
have power to vote and otherwise act on behalf of the Corporation, in person or
by proxy, at any meeting of stockholders of or with respect to any action of
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
-13-
<PAGE>
ARTICLE V - STOCK
Section 1. Certificates of Stock.
---------------------------------
Each stockholder shall be entitled to a certificate signed by, or in the
name of the Corporation by, the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by him. Any of or all the signatures on
the certificate may be facsimile.
Section 2. Transfers of Stock.
------------------------------
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these Bylaws,
an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
Section 3. Record Date.
-----------------------
The Board of Directors may fix a record date, which shall not be more than
sixty nor less than ten days before the date of any meeting of stockholders, nor
more than sixty days prior to the time for the other action hereinafter
described, as of which there shall be determined the stockholders who are
entitled: to notice of or to vote at any meeting of stockholders or any
adjournment thereof; to express consent to corporate action in writing without a
meeting; to receive payment of any dividend or other distribution or allotment
of any rights; or to exercise any rights with respect
-14-
<PAGE>
to any change, conversion or exchange of stock or with respect to any other
lawful action.
Section 4. Lost, Stolen or Destroyed Certificates.
--------------------------------------------------
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5. Regulations.
-----------------------
The issue, transfer, conversion and registration of certificates of stock
shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI - NOTICES
Section 1. Notices.
-------------------
Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director officer, employee or
agent, shall be in writing and may in every instance be effectively given by
hand delivery to the recipient thereof, by depositing such notice in the United
States mail or with a nationally recognized courier, postage prepaid, or by
sending such notice by telecopy. Any such notice shall be addressed to such
stockholder, director, officer, employee, or agent at his or her last known
address as the same appears on the books of the Corporation. The time when such
notice is received, if hand delivered, or dispatched, if delivered through
-15-
<PAGE>
the mails, by overnight courier or by telecopy, shall be the time of the giving
of the notice.
Section 2. Waivers.
-------------------
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before of after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required
to be given to such stockholder, director, officer, employee or agent. Neither
the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII - MISCELLANEOUS
Section 1. Facsimile Signatures.
--------------------------------
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 2. Corporate Seal.
--------------------------
The Board of Directors may provide a suitable seal, containing the name of
the Corporation, which seal shall be in the charge of the Secretary. If and when
so directed by the Board of Directors or a committee thereof, duplicates of the
seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 3. Reliance upon Books, Reports and Records.
----------------------------------------------------
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall,
-16-
<PAGE>
in the performance of his duties, be fully protected in relying in good
faith upon the books of account or other records of the Corporation, including
reports made to the Corporation by any of its officers by an independent
certified public accountant, or by an appraiser selected with reasonable care.
Section 4. Fiscal Year.
-----------------------
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 5. Time Periods.
------------------------
In applying any provision of these Bylaws which require that an act be
done or not done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to an event, calendar
days shall be used, the day of the doing of the act shall be excluded, and the
day of the event shall be included.
ARTICLE VIII - AMENDMENTS
Section 1. Amendments.
----------------------
These Bylaws may be amended, suspended or repealed in a manner consistent
with law at any regular or special meeting of the Board of Directors by vote of
a majority of the entire board or at any stockholders meeting called and
maintained in accordance with Article I of these Bylaws. Such amendment,
suspension or repeal may be evidenced by resolution or other wise as the Board
may deem appropriate.
-17-
<PAGE>
The undersigned, Secretary of the Corporation, does hereby certify that
the foregoing is a true copy of the Bylaws of the Corporation, and that the same
are in full force and effect as of the 10th day of April, 1996.
Dated:_______________ /s/ Faye A. Florence
------------------------------
Faye A. Florence, Secretary
-18-
CERTIFIED TO BE A TRUE AND CORRECT COPY Jim Miles
AS TAKEN FROM AND COMPARED WITH THE SECRETARY OF STATE
ORIGINAL ON FILE IN THIS OFFICE. FILED
APR 25 1996
APR 25 1996 11:00 AM
/s/ Jim Miles
- ----------------------------------------
SECRETARY OF STATE OF SOUTH CAROLINA
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION OF
Silvestri Corporation of South Carolina
1. The name of the proposed corporation is Silvestri Corporation of South
Carolina.
2. The initial registered office of the corporation is 151 Meeting Street,
Suite 415, Charleston, SC 29401 and the initial registered agent at such
address is Robert M. Kunes.
3. The corporation is authorized to issue shares of stock as follows.
Complete a or b, whichever is applicable:
a. [X] The corporation is authorized to issue a single class of shares,
and the total number of shares authorized is 1,000.
b. [ ] The corporation is authorized to issue more than one class of
shares:
Class of Shares Authorized No. of Each Class
_______________________ _________________________
_______________________ _________________________
_______________________ _________________________
If shares are divided into two or more classes or if any class of shares
is divided into series within a class, the relative rights, preferences and
limitations of the shares of each class, and of each series within a class, are
as follows:
4. The existence of the corporation shall begin when these articles are filed
with the Secretary of State unless a delayed date is indicated:
5. The optional provisions which the corporation elects to include in the
Articles of Incorporation are as follows:
Officers shall serve until their respective successors are elected.
<PAGE>
6. The name and address and signature of each incorporator is as follows
(only one is required):
NAME ADDRESS SIGNATURE
Robert M. Kunes 151 Meeting Street, Suite 415, /s/ Robert M. Kunes
Charleston, SC 29401 ------------------------
1. I, Nancie Quick, an attorney licensed to practice in the State of South
Carolina, certify that the corporation, to whose articles of incorporation
this certificate is attached, has complied with the requirements of
Chapter 2, Title 33 of the 1976 South Carolina Code relating to the
articles of incorporation.
Date: April 24, 1996 /s/ Nancie Quick
--------------------------------------
(Signature)
Nancie Quick
Address:
Evans, Carter, Kunes & Bennett, P.A.
151 Meeting Street, Suite 415
Charleston, S.C. 29401
FILING INSTRUCTIONS
1. File two copies of this form, the original and either a duplicate original
or a conformed copy.
2. If the space on this form is insufficient, please attach additional sheets
containing reference to the appropriate paragraph in this form.
3. The fee to be paid at the time of filing this form is $135 which includes
the following: $10.00 filing fee for the Articles of Incorporation;
$100.00 for the filing tax; $25.00 for the minimum license fee. Attach one
check in the amount of $135.00 made payable to the Office of the Secretary
of State to the Articles when filed.
4. THIS FORM MUST BE ACCOMPANIED BY THE FIRST REPORT OF CORPORATIONS (see
ss.12-19-02).
Jim Miles
SECRETARY OF STATE
FILED
MAY 13 1996
11:00 AM
STATE OF SOUTH CAROLINA SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant ss.Section 3-10-106 of the 1976 South Carolina Code, as amended,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
1. The name of the corporation is SILVESTRI CORPORATION OF SOUTH CAROLINA
2. On May 7, 1996, the corporation adopted the following Amendment(s) of its
Articles of Incorporation:
(Type or attach the complete text of Each Amendment)
Upon filing of Articles of Amendment with the South Carolina
Secretary of State, the name of the Corporation shall be changed
from Silvestri Corporation of South Carolina to Silvestri, Inc. of
South Carolina.
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows: (if not applicable, insert
"not applicable" or "NA").
N/A
4. Complete either a or b, whichever is applicable.
a. |_| Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of outstanding
shares of each voting group entitled to vote separately on the
Amendment, and the vote of such shares was:
Number of Number of Number of Votes Number of Undisputed*
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the meeting For Against
- ----- ------ ---------- ----------- ---------------------
CERTIFIED TO BE A TRUE AND CURRENT COPY
AS TAKEN FROM AND COMPARED WITH THE
ORIGINAL ON FILE IN THIS OFFICE.
MAY 13 1996
/s/ Jim Miles
------------------------------------
SECRETARY OF STATE OF SOUTH CAROLINA
<PAGE>
*NOTE: Pursuant to Section 33-10-106(6)(i), the corporation can alternatively
state the total number of undisputed shares cast for the amendment by
each voting group together with a statement that the number of cast for
the amendment by each voting group was sufficient for approval by that
voting group.
b. |X| The Amendment(s) was duly adopted by the incorporators or board
of directors without shareholder approval pursuant to
ss.33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South Carolina
Code as amended, and shareholder action was not required.
5. Unless a delayed date is specified, the effective date of these Articles
of Amendment shall be the date of acceptance for filing by the Secretary
of State (See ss.33-1-230(b)): ___________
DATE May 7, 1996 Silvestri Corporation of South Carolina
----------------------------------------
(Name of Corporation)
By: /s/ Robert M. Kunes
------------------------------------
(Signature)
Robert M. Kunes, Incorporator
------------------------------------
(Type or Print Name and Office)
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original or a
conformed copy, must by filed.
2. If the space in this form in insufficient, please attach additional sheets
containing a reference to the appropriate paragraph in this form.
3. Filing fees and taxes payable to the Secretary of State at time of filing
application.
Filing Fee $ 10.00
Filing tax 100.00
Total $110.00
BYLAWS
OF
SILVESTRI, INC. OF SOUTH CAROLINA
---------------------------------
ARTICLE I - OFFICES
The principal office of the Corporation in the State of South Carolina
shall be located in the City and County designated in the Articles of
Incorporation. The Corporation may have such other offices, either within or
without the State, as may be determined by the Board of Directors.
The registered office of the Corporation required by the South Carolina
Business Corporation Act of 1988 need not be identical with the principal office
of the Corporation and the Board of Directors may from time to time change the
address of the registered office of the Corporation.
ARTICLE II - MEETINGS OF SHAREHOLDERS
ss.1. Place Of Meeting. Meetings of shareholders may be held at such
place, either within or without the State, as may be designated by the Board of
Directors or by a waiver of notice signed by all shareholders entitled to vote
at a meeting. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal office of the Corporation
within the State.
ss.2. Annual Meeting. A meeting of the shareholders shall be held annually
to elect directors and to act on such other
1
<PAGE>
business relating to the affairs of the Corporation as may properly come before
the meeting. The meeting shall be held at the date, time and place prescribed in
the notice of such meeting. The annual meeting shall be held within four months
after the close of the tax year of the Corporation. Notwithstanding the
foregoing provision, in lieu of an annual meeting the Corporation may take such
action as would be taken at an annual meeting pursuant to the unanimous written
consent of the shareholders. If the Corporation shall fail to hold the actual or
consent annual meeting for a period of five months after the close of its tax
year, a substitute annual meeting may be called by any person or persons
entitled to call a special meeting of shareholders.
ss.3. Special Meetings. Unless otherwise provided in the Articles of
Incorporation, special meetings of the shareholders may be held at the
Corporation's principal office or at any other place reasonably convenient to
the majority of shareholders. Special meetings may be called for any legitimate
purpose by the President, by a majority of the Board of Directors, or by the
holders of not less than ten percent of the shares entitled to vote at the
meetings. No business other than that specified in the notice of meeting shall
be transacted at any such special meeting.
ss.4. Notice of Meeting. Written or printed notice stating the date, time
and place of meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting
2
<PAGE>
is called, shall be delivered not less than ten nor more than sixty days before
the date of the meeting. Such notice shall be delivered, personally or by mail,
by or at the direction of the officer or persons calling the meeting to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed delivered when deposited with postage prepaid in the United
States mail, addressed to the shareholder at the address appearing on the stock
transfer book of the Corporation. Notice of a meeting of shareholders need not
be given to any shareholder who signs a waiver of notice, in person or by proxy,
either before or after such meeting. Attendance of a shareholder at a meeting,
in person or by proxy, shall of itself constitute a waiver of notice, except
when the shareholder attends a meeting solely for the purpose of stating his or
her objection, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting has not been lawfully called or
convened.
ss.5. Fixing of Record Date. The Board of Directors may fix in advance a
record date for the determination of shareholders entitled to notice of, or to
vote at, any meeting or to receive payment of a dividend or other distribution,
or for any other proper purpose. In no case shall such date be more than
seventy-five days or, in case of a meeting of shareholders, less than
twenty-five full days, prior to the date on which the particular action
requiring such determination of shareholders is to be taken.
3
<PAGE>
ss.6. Quorum. The holders of a majority of shares entitled to vote, either
in person or by proxy, shall constitute a quorum at a meeting of shareholders
for the purpose of transacting any business. The shareholders present at a duly
called meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum. In the absence of a quorum, any meeting of
shareholders may be adjourned by vote of a majority of the shares present.
ss.7. Voting.
(a) Except as otherwise provided, any corporate action authorized at a
meeting of shareholders, which has been duly called and at which a quorum is
present, shall require a majority of the votes cast at such meeting by the
holders of shares entitled to vote on the subject matter.
(b) Except as otherwise provided, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote of the
shareholders.
(c) At all meetings of shareholders, a shareholder may vote in person, by
proxy executed in writing by the shareholder, or by his or her duly authorized
attorney in fact. All proxies must have an effective date. The appointment of a
proxy shall be valid for eleven months. Except as provided by ss.33-7-220(d) of
the South Carolina Business Corporation Act of 1988, relating to irrevocable
proxies, every proxy shall be revocable at the pleasure of the shareholder
executing it. Revocation of a proxy
4
<PAGE>
may be effected by an instrument which by its terms revokes such proxy or by a
duly executed proxy bearing a later date.
(d) The Corporation is prohibited from voting any shares issued by it,
including treasury shares; furthermore, any such shares disqualified from voting
shall not be counted in determining the total number of outstanding shares at
any given time. Shares standing in the name of another corporation may be voted
by a duly authorized corporate officer or by an agent or proxy as the bylaws of
such corporation may prescribe, or in the absence of such provision, as the
board of directors of such corporation may determine. Any fiduciary may vote
shares which stand of record in such fiduciary's name. Shares held by any
personal representative or conservator may be voted by such person, upon proof
of appointment, without transfer of shares into such representative's name. A
minor may vote shares which stand of record in his or her name and may not
thereafter disaffirm or void such vote. A shareholder whose shares are pledged
shall be entitled to vote such shares until the shares have been transferred on
the records of the Corporation into the name of the pledgee or its nominee.
Shares standing in the name of a partnership may be voted by any partner, and
shares standing in the name of a limited partnership may be voted by any general
partner. Shares standing in the name of a person as life tenant may be voted by
such life tenant. Shares held jointly or as tenants in common by two or more
persons may be voted by one such shareholder. Generally, where shares are held
5
<PAGE>
jointly or as tenants in common by more than two persons, the act of a majority
of those acting shall bind all such shareholders.
ss.8. Informal Action by Shareholders. Any action required to be taken at
a meeting of the shareholders, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof and
delivered to the Corporation.
ss.9. Cumulative Voting. Unless otherwise provided in the Articles of
Incorporation, at each election for directors every shareholder entitled to vote
at such election shall have the right to vote, in person or by proxy, the number
of shares owned by him or her for as many persons as there are directors to be
elected and for whose election such shareholder has a right to vote, or to
cumulate his or her votes by giving one candidate as many votes as the number of
such directors multiplied by the number of such shareholder's shares shall
equal, or by distributing such votes on the same principle among any number of
candidates. Any shareholder intending to cumulate his or her votes, as herein
provided, either shall give written notice of such intention to the President or
other officer of the Corporation not less than forty-eight hours before the time
fixed for the meeting or shall announce his or her intention in such meeting
before the voting for directors shall commence.
6
<PAGE>
Such notice having been given, all shareholders entitled to vote at such meeting
shall be entitled to cumulate their votes.
ARTICLE III - BOARD OF DIRECTORS
ss.1. General Powers and Standards of Conduct. The business and affairs of
the Corporation shall be managed by its Board of Directors which shall be
invested with all corporate powers not expressly reserved by statute, the
charter, the bylaws or by agreement among the shareholders. A director shall
discharge his or her duties as a director in good faith; with the care an
ordinarily prudent person in a like position would exercise under similar
circumstances; and in a manner which he or she reasonably believes to be in the
best interests of the Corporation and the shareholders.
ss.2. Number, Tenure and Qualifications. The Board of Directors shall
consist of one or more members, unless the number of members is fixed by the
Articles of Incorporation. The members of the initial Board of Directors shall
hold office until their successors have been elected and qualified at the first
meeting of shareholders. Thereafter, each director shall hold office until his
or her successor is elected and qualified at the next annual meeting of
shareholders. Unless otherwise provided in the Articles of Incorporation, the
number of directors last approved by the shareholders may be increased or
decreased by thirty percent or less by the Board of Directors. However, no
decrease in the number of directors shall have the
7
<PAGE>
effect of shortening the term of any incumbent director. Directors need not be
residents of the State of South Carolina or shareholders of the Corporation.
ss.3. Regular Meetings. A regular annual meeting of the Board of Directors
shall be held immediately after, and at the same place as, the annual meeting of
shareholders. The Board of Directors may provide by resolution the time and
place for the holding of additional regular meetings.
ss.4. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board of Directors, by the
President or any two directors. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or without
the State of South Carolina, as the place for holding any special meeting.
ss.5. Meetings by Telephone or other Means. The Board of Directors may
conduct a meeting by means of conference telephone or other means of
communication by which all persons participating in the meeting can hear one
another at the same time and participation in the meeting by such means shall
constitute presence in person at such meeting.
ss.6. Notice of Meetings. Notice of any regular meeting of the Board of
Directors shall not be required to be given. Notice of any special meeting shall
be given at least five days prior to the date of such meeting. Such notice may
be by telephone or by written notice delivered personally or mailed to
8
<PAGE>
each director at his or her business address. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail so addressed,
with postage prepaid. If notice is given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
Any director may waive notice of any meeting either before or after the meeting.
The attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objection to the transaction of any business because the meeting is not
lawfully called or convened. The business to be transacted at, or the purpose
of, any special meeting of the Board of Directors shall be specified in the
notice or waiver of notice of such meeting.
ss.7. Quorum and Vote of Directors. A majority of the number of directors
then in office shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors. 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, unless the vote of a greater proportion is required by the South
Carolina Business Corporation Act of 1988 or the Articles of Incorporation.
ss.8. Action by Directors without a Meeting. Action taken by a majority of
the Board of Directors without a meeting shall be deemed an action of the Board
of Directors under the following circumstances:
9
<PAGE>
(a) Unless the Articles of Incorporation provided otherwise, action
required or permitted to be taken at a meeting of the Board of Directors may be
taken without a meeting if the action is assented to by all members of the
board.
(b) The action may be evidenced by one or more written consents describing
the action taken, signed by each director, and included in the minutes or filed
with the corporate records reflecting the action taken. Action evidenced by
written consent is effective when the last director signs the consent, unless
the consent specifies a different effective date. A consent so signed has the
effect of a meeting vote and may be described as such in any document.
ss.9. Removal. Unless provided otherwise in the Articles of Incorporation,
any director may be removed with or without cause by the shareholders.
(a) A director may be removed by the shareholders only at a meeting called
for such purpose and the meeting notice must state that the purpose, or one of
the purposes, of the meeting is removal of the director.
(b) "Cause" for removal of a director shall mean fraudulent or dishonest
acts, or gross abuse of authority in the discharge of duties to the Corporation.
ss.10. Vacancies. Any vacancy occurring on the Board of Directors may be
filled by the shareholders or by the affirmative vote of a majority of the
remaining directors although less than a quorum of the Board of Directors. A
10
<PAGE>
director elected to fill a vacancy shall be elected for the unexpired term of
his or her predecessor in office. Any directorship to be filled by reason of an
increase in the number of directors may be filled by election by the Board of
Directors for a term of office continuing only until the next election of
directors by the shareholders.
ss.11. Compensation. By resolution of the Board of Directors, each
director may be paid his or her expenses of attending each meeting of the Board
of Directors, and may be paid a stated salary as director or a fixed sum for
attending each meeting or both. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ss.12. Executive and Other Committees. From time to time the Board of
Directors may designate by resolution an executive committee and other
committees from among its members, each consisting of one or more directors and,
except as limited under ss.33-8-250(e) of the South Carolina Business
Corporation Act of 1988, may delegate to such committee or committees all the
authority of the Board of Directors.
ARTICLE IV - OFFICERS
ss.1. Number. The officers of the Corporation shall be any one or more of
the following: A President, one or more Vice Presidents, a Secretary and a
Treasurer, each of whom shall be elected by the Board of Directors. Such other
officers and
11
<PAGE>
assistant officers as may be deemed necessary may be elected or appointed by the
Board of Directors. Any two or more offices may be held by the same person, but
no officer may act in more than one capacity where action of two or more
officers is required.
ss.2. Election, Term of Office and Standards of Conduct. The officers
shall be elected by the Board of Directors annually at the first meeting of the
Board of Directors held after each annual meeting of the shareholders. If the
election shall not be held at such meeting, such election shall be held as soon
thereafter as may be practical. The officers shall hold their offices until
their successors are chosen and have qualified or until their resignation or
removal. Each officer with discretionary authority shall discharge his or her
duties in good faith, with the care that an ordinarily prudent person in a like
position would exercise under similar circumstances, and in a manner that he or
she reasonably believes to be in the best interests of the Corporation and the
shareholders.
ss.3. Removal. Unless otherwise provided in the Articles of Incorporation,
any officer or agent elected or appointed by the Board of Directors may be
removed by the board whenever in its judgment the best interests of the
Corporation would be served thereby. Any officer or agent elected by the
shareholders may be removed only by vote of the shareholders. Removal from
office, however effected, shall not prejudice the contract rights, if any, of
the officer removed. Election or appointment
12
<PAGE>
of an officer or agent shall not of itself create contract rights.
ss.4. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by a majority of the Board
of Directors for the unexpired portion of the term.
ss.5. President. The President shall be the principal executive officer of
the Corporation and, subject to the control of the Board of Directors, shall in
general supervise and control all of the business and affairs of the
Corporation. He or she shall preside at all meetings of the shareholders and of
the Board of Directors. He or she may sign, with the Secretary or any other
proper officer of the Corporation authorized by the Board of Directors,
certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts, or other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and executing thereof shall be
expressly delegated by the Board of Directors or by these bylaws to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed; and in general shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors.
ss.6. Vice President. In the absence of the President or in the event of
his or her death, inability or refusal to act, the Vice President (or in the
event there be more than one Vice
13
<PAGE>
President, the Vice Presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the Corporation and shall perform such
other duties as from time to time may be assigned by the President or by the
Board of Directors.
ss.7. Secretary. The Secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the Corporation and see
that the seal of the Corporation is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly authorized; (d) keep a
register of the post office address of each shareholder; (e) sign with the
President, or a Vice-President, certificates for shares of the Corporation, the
issuance of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
Corporation; and (g) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned by the
President or by the Board of Directors.
14
<PAGE>
ss.8. Treasurer. The Treasurer shall: (a) have charge of and custody of
and be responsible for all funds and securities of the Corporation; (b) receive
and give receipts for monies due and payable to the Corporation from any source
whatsoever, and deposit all such monies in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Article V of these bylaws; and (c) in general perform all
the duties incident to the office of treasurer and such other duties as from
time to time may be assigned by the President or by the Board of Directors. If
required by the Board of Directors, the Treasurer shall give a bond for the
faithful discharge of his or her duties in such sum and with such surety or
sureties as the Board of Directors shall determine.
ss.9. Salaries. The salaries of the officers shall be fixed from time to
time by the Board of Directors and no officer shall be prevented from receiving
such salary by reason of the fact that he or she is also a director of the
Corporation.
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS
ss.1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
ss.2. Loans. No loans shall be contracted on behalf of the
15
<PAGE>
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
ss.3. Checks, Drafts, Etc. All checks, drafts, or other orders for the
payment of money, notes, or other evidences of indebtedness issued in the name
of the Corporation shall be signed by such officer or officers, agent or agents
of the Corporation and in such manner as shall from time to time be determined
by resolution of the Board of Directors.
ss.4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select.
ARTICLE VI - CERTIFICATES FOR SHARES AND THEIR TRANSFER
ss.1. Certificates for Shares. Certificates representing shares of the
Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the Chairman of the Board or the
President and by the Secretary or an Assistant Secretary and sealed with the
corporate seal or a facsimile thereof. The signatures of such 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 one of
its employees. All certificates for shares shall be consecutively
16
<PAGE>
numbered or otherwise identified. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be cancelled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except that in case
of a lost, destroyed or mutilated certificate a new one may be issued therefor
upon such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
ss.2. Transfer of Shares. Transfer of shares of the Corporation shall be
made only on the stock transfer books of the Corporation by the holder of record
thereof or by his or her legal representative, who shall furnish proper evidence
of authority to transfer, or by his or her attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the Corporation,
and on surrender for cancellation of the certificate for such shares. The person
in whose name shares stand on the books of the Corporation shall be deemed by
the Corporation to be the owner thereof for all purposes.
ARTICLE VII - FISCAL YEAR
The fiscal year of the Corporation shall be as determined by the Board of
Directors.
17
<PAGE>
ARTICLE VIII - DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by the South Carolina Business Corporation Act of 1988
and by the Articles of Incorporation.
ARTICLE IX - AMENDMENTS
These bylaws may be altered, amended or repealed and new bylaws may be
adopted by the Board of Directors or by the shareholders at any regular or
special meeting of the Board of Directors or by a majority vote of the
shareholders then entitled to vote in the election of directors.
The undersigned hereby certifies that the foregoing bylaws have been
adopted as the first bylaws of the Corporation, pursuant to the requirements of
the South Carolina Business Corporation Act of 1988.
/s/ Faye A. Florence
-----------------------------------
Secretary
Dated: 5/20/96
18
ARTICLES OF AMENDMENT
OF
RAUCH INDUSTRIES, INC.
The undersigned corporation hereby executes these Articles of Amendment
for the purpose of amending its charter:
1. The name of the corporation is RAUCH INDUSTRIES, INC.
2. The following amendment to the charter of the
corporation was adopted by its shareholders on the 24th day of
April, 1989, in the manner prescribed by law:
There is hereby added an Article Ninth reading as follows:
"Ninth. To the fullest extent permitted by the North
Carolina Business Corporation Act as it exists or may
hereafter be amended, a director of the corporation shall not
be liable to the corporation or any of its shareholders for
monetary damages for breach of duty as a director."
3. The number of shares of the corporation outstanding at the time of
such adoption was one million six hundred forty-two thousand five hundred
twenty-eight (1,642,528) shares of common stock and eighteen thousand eight
hundred eighty (18,880) shares of preferred stock; and the number of shares
entitled to vote thereon was one million six hundred forty-two thousand five
hundred twenty-eight (1,642,528).
4. The number of shares voted for such amendment was one million four
hundred seventy-nine thousand four hundred twenty-three (1,479,423), and the
number of shares voted against such amendment was eleven thousand one hundred
fifty (11,150).
5. The amendments herein effected do not give rise to dissenters'
rights under NCGS ss.55-101(b) because they do not change the corporation into a
nonprofit corporation or cooperative association, and they do not effect any
changes in shares, or in dividend or other rights or preferences, as described
in NCGS ss.55- 101(b).
IN WITNESS WHEREOF, these Articles of Amendment are signed by the
President and Secretary of the Corporation, this 8th day of May, 1989.
RAUCH INDUSTRIES, INC.
By: s/ Marshall A. Rauch
-----------------------------
Marshall A. Rauch, President
By: s/ Ingrid Rauch Sturm
-----------------------------
Ingrid Rauch Sturm, Secretary
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF GASTON
I, Ann S. Bradshaw, a Notary Public in and for said County and State,
do hereby certify that on this 8th day of May, 1989, personally appeared before
me Marshall A. Rauch and Ingrid Rauch Sturm, President and Secretary,
respectively, of Rauch Industries, Inc., each of whom, being by me first duly
sworn, declared that (s)he signed the foregoing document in the capacity
indicated, that (s)he was authorized so to sign, and that the statements therein
contained are true.
s/Ann S. Bradshaw
-------------------------------
Notary Public
My Commission Expires: Oct. 25, 1989
Filed for registration at
12:23 o'clock PM on the
19th day of May, 1989 and
Recorded and Verified in
the office of the Register
of Deeds of Gaston County,
N.C.
In Book 55, Page 861
This 19th day of May, 1989
Alice B. Brown
------------------------
Registrar of Deeds
By: s/Betty A. Morris
--------------------
Deputy
BY-LAWS
OF
RAUCH INDUSTRIES, INC.
T-A-B-L-E O-F C-0-N-T-E-N-T-S
ARTICLE 1.
OFFICES
Section Page
1. Principal Office...........................................1
2. Registered Office..........................................1
3. Other Offices..............................................1
ARTICLE II.
MEETING OF SHAREHOLDERS
1. Place of Meetings..........................................1
2. Annual Meetings............................................1
3. Substitute Annual Meeting..................................1
4. Special Meetings...........................................1
5. Notice of Meetings.........................................2
6. Voting Lists...............................................2
7. Quorum.....................................................3
8. Proxies....................................................3
9. Voting of Shares...........................................3
10. Shares Owned By Corporation................................3
11. Conduct of Shareholder Meetings............................4
12. Voting Inspectors..........................................4
13. Record Date................................................5
ARTICLE III.
DIRECTORS
1. General Powers.............................................5
2. Number, Term and Qualifications............................5
3. Election of Directors......................................5
4. Cumulative Voting..........................................5
5. Removal....................................................6
6. Vacancies..................................................6
7. Compensation of Nerrbers of Board or Committees............6
<PAGE>
ARTICLE IV.
MEETINGS OF DIRECTORS
Section Page
1. Annual and Reaular Meetings................................6
2. Special Meetings...........................................6
3. Notice of Meetings.........................................7
4. Waiver of Notice...........................................7
5. Presiding Officer..........................................7
6. Quorum.....................................................7
7. Manner of Acting, Vote Required, Vacancies.................7
8. Presumption of Assent......................................7
9. Vacancies..................................................7
10. Informal Action by Directors...............................8
ARTICLE V.
COMMITTEES OF THE BOARD
1. Standing Committees........................................8
2. Executive Committee........................................8
3. Audit Committee............................................9
4. Executive Compensation Committee...........................9
5. Other Committees..........................................10
6. Board's Continuing Responsibility.........................10
7. Minutes of Committees.....................................10
ARTICLE VI.
OFFICERS
1. Officers of the Corporation...............................10
2. Election and Term.........................................10
3. Removal...................................................11
4. Compensation..............................................11
5. Chief Executive Officer...................................11
6. Chairman..................................................11
7. President.................................................11
8. Executive Vice Presidents.................................11
9. Senior Vice Presidents....................................12
10. Vice Presidents and Assistant Vice Presidents.............12
11. Secretary.................................................12
12. Assistant Secretaries.....................................13
13. Treasurer.................................................13
14. Assistant Treasurers......................................13
<PAGE>
Section Page
ARTICLE VII.
CONTRACTS, LOANS AND DEPOSITS
1. Contracts.................................................13
2. Loans.....................................................14
3. Checks and Drafts.........................................14
4. Deposits..................................................14
ARTICLE VIII.
SHARE CERTIFICATES AND THEIR TRANSFER; RECORD DATE
1. Certificates for Shares...................................14
2. Transfer of Shares........................................15
3. Lost Certificate..........................................15
4. Closing Transfer Books and Fixing Record Date.............15
5. Holder of Record..........................................16
6. Treasury Shares...........................................16
ARTICLE IX.
GENERAL PROVISIONS
1. Dividends.................................................16
2. Seal......................................................16
3. Waiver of Notice..........................................16
4. Fiscal Year...............................................17
5. Indemnification...........................................17
ARTICLE X.
AMENDMENTS................................................17
<PAGE>
BY-LAWS
OF
RAUCH INDUSTRIES, INC.
ARTICLE I.
OFFICES
Section 1. Principal Office. The principal office of the Corporation
shall be located at the City of Gastonia, North Carolina.
Section 2. Registered Office. The registered office of the Corporation
required by law to he maintained in the State of North Carolina may be, but
need not be, identical with the principal office.
Section 3. Other Offices. The Corporation may have offices at such
other places, either within or without the State of North Carolina, as the Board
of Directors may from time to time determine, or as the affairs of the
Corporation may require.
ARTICLE II.
MEETING OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of shareholders shall be
held at the principal office of the Corporation, or at such other place within
the State of North Carolina, as the Board of Directors shall designate.
Section 2. Annual Meetings. The annual meeting of the shareholders
shall be held at 2:00 P.M. on the fourth Monday in April of each year, if not a
legal holiday, for the purpose of electing directors of the Corporation and for
the transaction of such other business as may be properly brought before the
meeting. If this date shall be a legal holiday, the annual meeting shall be held
on the next succeeding business day.
Section 3. Substitute Annual Meeting. If the annual meeting shall not
be held on the day designated by these by-laws, a substitute annual meeting may
be called in accordance with the provisions of Section 4 of this Article. A
meeting so called shall be designated and treated for all purposes as the annual
meeting.
Section 4. Special Meetings. Special meetings of the shareholders may
be called at any time by the Chairman, the President or the Board of Directors
of the Corporation, or any five members of the Board of Directors, and shall be
called by the Chairman or the President upon written request of the holders of
not less than twenty-five per cent (25%) of all the outstanding shares entitled
to vote at the meeting.
<PAGE>
Section 5. Notice of Meetings. Written or printed notice stating the
time and place of the meeting shall be delivered not less than ten or more than
fifty days before the date thereof, either personally or by mail, by or at the
direction of the Chairman, the President, the Secretary, or other person calling
the meeting, to each shareholder of record entitled to vote at such meeting;
provided that such notice must be given not less than twenty days before the
date of any shareholders' meeting at which a merger or consolidation is to be
considered. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, postage prepaid and addressed to the
shareholder at his address as it appears on the record of shareholders of the
Corporation.
In case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted thereat unless
it is a matter, other than election of directors, on which the vote of
shareholders is expressly required by the provisions of the North Carolina
Business Corporation Act. In the case of a special meeting, the notice of
meeting shall specifically state the purpose or purposes for which the meeting
is called.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall be given as in the case of an original meeting. When a
meeting is adjourned for less than thirty days in any one adjournment, it shall
not be necessary to give any notice of the adjourned meeting other than by
announcement at the meeting at which the adjournment is taken.
Section 6. Voting Lists. At least ten days before each meeting of
shareholders, the Secretary of the Corporation shall prepare an alphabetical
list of the shareholders entitled to vote at such meeting, with the address of
and number of shares held by each, which list shall be kept on file at the
registered and also the principal office, if different, of the Corporation for a
period of ten days prior to such meeting, and shall be subject to inspection by
any shareholder at any time during usual business hours. This list also shall be
produced and kept open at the time and place of the meeting and shall be subject
to inspection by any shareholder at any time during the meeting.
Section 7. Quorum. The holders of a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at meetings
of shareholders. If there is not a quorum at the opening of a meeting of
shareholders, such meeting may be adjourned from time to time by the vote of a
majority of the shares voting on the motion to adjourn, and, at any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the original meeting. The shareholders present at a duly
constituted meeting may
<PAGE>
continue to transact business until adjournment notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 8. Proxies. Shares may be voted either in person or by one or
more agents authorized by a written proxy executed by the shareholder or by his
duly authorized attorney in fact. A proxy shall not be valid after the
expiration of eleven months from the date of its execution, unless the person
executing it specifies therein a longer length of time for which it is to
continue in force, or limits its use to a particular meeting, but in no event
shall a proxy be valid after ten years from the date of its execution.
Section 9. Voting of Shares. Each outstanding share having voting
rights shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.*
A vote of a majority of the then outstanding shares entitled to vote
shall be necessary to take or authorize action upon any matter which may
properly come before a meeting of shareholders, unless a greater vote is
required by law or by the charter or by any specific provision of these
by-laws.*
Voting on all matters shall be by voice or by a show of hands unless in
case of the election of directors any shareholder, or in case of any other
matter one-twentieth of the shareholders represented and entitled to vote at
such meeting shall, prior to voting on any matter, demand a ballot vote in which
case the vote on such matter shall be by written ballot.* (Approved by
Shareholders 1/3/62 as then Section 8, Article II.)
(EDITOR'S NOTE: The cumulative voting provisions of Section 4, Article III, are
as matter of law an exception to the provisions of this Section 9, Article II,
in connection with the election of directors.)
Section 10. Shares Owned by Corporation. Shares of its own stock owned
by the Corporation, directly or indirectly, through a subsidiary corporation or
otherwise, shall not be voted and shall not be counted in determining the total
number of shares entitled to vote.
Section 11. Conduct of Shareholder Meetings. The Chairman, or in his
absence the President or in the absence of both an Executive Vice President,
shall preside at all meetings of the shareholders; and the Secretary, or in his
absence an Assistant Secretary, shall act as secretary of any such meetings.
Such presiding officer shall call any meetings of shareholders to order and,
absent the prior appointment by the Board of Directors as authorized in Section
11 of this Article, shall then appoint three shareholders present as Voting
Inspectors to act at any such meeting or adjournment thereof, and shall
otherwise conduct such
<PAGE>
meetings. At any annual meeting of shareholders the presiding
officer may follow the following agenda:
1.Call to order.
2.Proof of notice of meeting.
3.Appoint Voting Inspectors or announce their prior
appointment by the Board of Directors.
4.Determination of shares represented and establishment
of the presence of a quorum.
5.Reading and approving minutes of prior meetings.
6.Delivery of financial statements and any reports on the
business operations and conditions of the Corporation.
7.Election of directors.
8.Unfinished business.
9.New business.
10. Adjournment.
Section 12. Voting Inspectors. In advance of any meeting of
shareholders, the Board of Directors may appoint three Voting Inspectors to act
at any such meeting or adjournment thereof, and in the absence of such
appointment the officer acting as Chairman of the meeting shall make such
appointment. Any vacancy, whether from refusal to act or otherwise, may be
filled by the Chairman of the meeting. The decision or certificate of any two of
the Voting Inspectors shall be effective as the act of all.
The Voting Inspectors shall determine the number of shares outstanding,
the voting power of each, the shares represented at the meeting, the existence
of a quorum, the authenticity, validity and effect of proxies, hear and
determine all challenges and questions in connection with the vote, count and
tabulate all votes, if necessary, and do such acts as may be proper to determine
an election or vote with fairness to all shareholders. On request, the
inspectors shall make a report in writing of any challenge, question or matter
determined by them and make and execute a certificate of any fact found by them.
The certificate of inspectors shall be prima facie evidence of the facts stated
therein and of the vote or any determination as certified by them, unless
overruled by a vote of a majority of the shares represented at the meeting,
exclusive of the shares as to which there is a controversy.
Section 13. Record Date. The record date for determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof may be fixed by the Board of Directors within the limits
provided in, or absent such action shall be as provided in Section 4, Article
VIII, of these by-laws.
ARTICLE III.
DIRECTORS
Section 1. General Powers. The business and affairs of the
<PAGE>
Corporation shall be managed by its Board of Directors.
Section 2. Number, Term and Qualifications. The number of directors
constituting the Board of Directors shall consist of such number of not less
than three (3) nor more than twelve (12), the exact number to be determined from
time to time by a majority of the votes of the shareholders entitled to vote.
Each director shall hold office until his death, resignation, retirement,
removal, disqualification, or his successor shall have been elected and
qualified. Directors need not be residents of the State of North Carolina.
Section 3. Election of Directors. Except as provided in Section 6 of
this Article, the directors shall be elected by plurality vote at the annual
meeting of shareholders; and those persons who receive the highest number of
votes shall be deemed to have been elected. Such election shall be by either
voice or standing vote, and shall not be by ballot.
Section 4. Cumulative Voting. Every shareholder entitled to vote at an
election of directors shall have the right to vote the number of shares standing
of record in his name for as many persons as there are directors to be elected
and for whose election he has a right to vote, or to cumulate his vote by giving
one candidate as many votes as the number of such directors multiplied by the
number of his shares shall equal, or by distributing such votes on the same
principle among any number of such candidates. The right of cumulative voting
shall not be exercised unless some shareholder or proxy holder announces in open
meeting, before the voting for the directors starts, his intention so to vote
cumulatively; and if such announcement is made, the chair shall declare that all
shares entitled to vote have the right to vote cumulatively and shall thereupon
grant a recess of not less than one-half nor more than four hours, as he shall
determine, or of such other period of time as is unanimously then agreed upon.
Section 5. Removal. Directors may be removed from office with or
without cause by a vote of shareholders holding a majority of the shares
entitled to vote at an election of Directors. However, unless the entire Board
is removed, an individual Director may not be removed if the number of shares
voting against the removal would be sufficient to elect a Director if such
shares were voted cumulatively at an annual election. If any Directors are so
removed, new Directors may be elected at the same meeting.
Section 6. Vacancies. A vacancy occurring in the Board of Directors may
be filled by a majority of the remaining Directors, though less than a quorum,
or by the sole remaining Director; but a vacancy created by an increase in the
authorized number of Directors shall be filled only by election at an annual
meeting or at a special meeting of shareholders called for that purpose. The
shareholders may elect a Director at any time to fill any vacancy
<PAGE>
not filled by the Directors. A Director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office.
Section 7. Compensation of Members of Board or Committees. The Board of
Directors shall fix the compensation to be paid those members of the Board and
its committees for their services as such, who are not drawing fixed
compensation by reason of being in the regular employment as an officer of the
Corporation or any corporate subsidiary of it. The Board of Directors shall also
provide for the payment or reimbursement of any expenses incurred by any member
of the Board or a committee in attending any regular or special meeting of a
Board or committee.
ARTICLE IV.
MEETINGS OF DIRECTORS
Section 1. Annual and Regular Meetings. The annual meeting of the Board
of Directors shall be held immediately after, and at the same place as, the
annual meeting of shareholders. In addition, the Board of Directors may provide
by resolution the time and place for the holding of additional regular meetings
within or without the State of North Carolina.
Section 2. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman, the President or
any two Directors. Any such special meeting may be held within or without the
State of North Carolina.
Section 3. Notice of Meetings. The annual or any regular meeting of the
Board of Directors may be held without notice. The person or persons calling a
special meeting of the Board of Directors shall at least three days before the
meeting give notice thereof by any usual means of communication. Such notice
need not specify the purpose for which the meeting is called.
Section 4. Waiver of Notice. Any Director may waive notice of any
meeting. Attendance by a Director at a meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 5. Presiding Officer. Meetings of the Board of Directors shall
be presided over by the Chairman, or in his absence or inability to do so at any
meeting, by the President, or if the President is also absent or unable to do so
at any meeting, then by such member of the Board as the Board shall elect from
its membership to preside at any such meeting.
Section 6. Quorum. A majority of the Directors fixed pursuant to
these by laws shall constitute a quorum for the transaction of
<PAGE>
business at any meeting of the Board of Directors.
Section 7. Manner of Acting, Vote Required, Vacancies. A vote of a
majority of all the directors then holding office shall be necessary to
constitute any act or direction of the Board of Directors. Vacancies in the
Board of Directors may be filled as provided in Article 111, Section 6, of these
by-laws. (Approved by Shareholders 1/3/62 as then Section 5, Article IV.)
Section 8. Presumption of Assent. A Director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his contrary vote is recorded or his dissent is otherwise entered in the minutes
of the meeting or unless he shall file his written dissent to such action with
the person acting as the Chairman of the meeting before the adjournment thereof.
Such right of dissent shall not apply to a director who voted in favor of such
action, but only to a director who was silent at the time of vote on such
action.
Section 9. Vacancies. Vacancies in the Board of Directors may be
filled as provide in Article III, Section 6, of these by-laws.
Section 10. Informal Action by Directors. Action taken by a majority of
the Directors without a meeting is nevertheless Board action if written consent
to the action in question is signed by all the Directors and filed with the
minutes of the proceedings of the Board, whether done before or after the action
so taken.
ARTICLE V.
COMMITTEES OF THE BOARD
Section 1. Standing Committees. The Board of Directors shall annually
appoint an Executive Committee, Audit Committee and Executive Compensation
Committee, designating the Chairman of each Committee. The membership of each
such Committee shall serve at the pleasure of the Board for the same current
year as the appointing Board of Directors or until their successors are
appointed. Any vacancies occurring thereon for any reason may be filled by the
Board of Directors.
Section 2. Executive Committee. The Executive Committee shall consist
of the Chief Executive officer and four other Directors, at least two of whom
shall be Directors who are not in the regular employment as an officer of the
Corporation or any corporate subsidiary of it. The duties of this Committee
shall be to act as an advisory committee to the Chief Executive officer when
called upon by the Chief Executive Officer relating to the policies and business
affairs of the Corporation, and shall perform such other duties assigned to it
by the Board of Directors. During the intervals between meetings of the Board of
Directors, this Committee shall have the same authority as the Board of
Directors
<PAGE>
as to any matters relating to the ordinary conduct of the business of the
Corporation, but shall have no authority as to any matters not relating to such
ordinary conduct of business, including the lack of any authority as to (a) any
dissolution, merger or consolidation of the Corporation, (b) the acquisition of
all or substantially all of the assets or capital stock of any other business or
corporation, (c) the sale, lease or exchange of all or substantially all of the
property of the Corporation, or of any manufacturing or processing plant of the
Corporation, (d) any amendment of the charter or any amendment, repeal or
adoption of any by-law of the Corporation, (e) the appointment of any Committee
or the filling of any vacancy in the Board of Directors or any Committee, (f)
the election or dismissal of any officer of the Corporation or fixing the
compensation of any officer, but it may suspend any officer for misconduct
pending action by the Board of Directors, (g) the payment of any dividend or the
issue of shares of stock, (h) amending or repealing any resolution or action of
the Board of Directors unless so authorized by the Board and (i) any matter
which by law required action by the Board of Directors. This Committee shall
meet when a meeting thereof shall be called by its Chairman or requested by the
Chief Executive Officer.
Section 3. Audit Committee. The Audit Committee shall consist of not
more than 5 nor less than * three directors, none of whom shall be in the
regular employment as an officer of the Corporation or any corporate subsidiary
of it. The duties of this Committee shall be (a) screening independent certified
public account firms and recommending of such a firm to the Board of Directors
for retention as the Corporation's independent auditors, (b) to determine to its
satisfaction that such independent auditors are properly discharging their
duties, that their financial reporting to the shareholders and directors is
being done in a competent and adequate manner, and that their relationship with
and advice to the officers and accounting staff of the Corporation is
cooperative and satisfactory, (c) to determine to its satisfaction that the
internal accounting procedures of the Corporation are adequate and that the
Corporation's accounting staff is performing its duties in a satisfactory
manner, (d) to discuss and review with such independent auditors the scope and
results of each of their annual examinations, and particularly any
recommendations of such auditors as result thereof, (e) when requested by such
independent auditors, the Chief Executive officer, the Treasurer, or when
otherwise indicated, to meet with such independent auditors or the Corporation's
accounting staff as to any matter involving auditing procedure and reporting,
(e) at least annually following receipt of the independent auditors' annual
examination to meet and report to the Board of Directors with reference to the
discharge of such Committee's duties and any recommendations it might have, and
(f) to perform such other duties assigned to it by the Board of Directors.
Section 4. Executive Compensation Committee. The Executive
<PAGE>
Compensation Committee shall consist of not more than five nor less than* three
directors, none of whom shall be in the regular employment as an officer of the
Corporation or any corporate subsidiary of it. The duties of this Committee
shall be (a) to recommend to the Board of Directors of the Corporation the
compensation of the various officers of the Corporation which, in the judgment
of the Committee, should from time to time be fixed by the Board, (b) to
recommend to the Board of Directors of any corporate subsidiary of the
Corporation the compensation of the various officers of any such corporate
subsidiary which, in the judgment of the Committee, should from time to time he
fixed by the Board of Directors of any such corporate subsidiary, after having
first reported any such proposed recommendation to the Board of the Corporation,
(c) to perform any duties assigned to it by the Board with reference to, or
under the provisions of any stock option plan
duly adopted for any Officers or employees of the Corporation or its corporate
subsidiaries, and (d) to perform such other duties assigned to it by the Board
of Directors. This Committee shall meet at least once annually and at such other
times as the Chief Executive officer shall request or the Chairman of this
Committee shall determine as necessary to discharge its duties.
Section 5. Other Committees. The Board of Directors may from time to
time may appoint such other committees, designating the Chairman thereof, as it
shall determine as necessary or desirable to serve at the Board's pleasure, and
for such purposes and with such duties and powers as the Board shall determine.
Section 6. Board's Continuing Responsibility. The Designation of any
Standing Committee by these by-laws and of any other Committee by the Board of
Directors and the delegation thereto of any authority by these by-laws or by the
Board of Directors shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility or liability imposed upon it or such
member by law.
Section 7. Minutes of Committees. Each Committee appointed by the Board
of Directors shall cause written minutes to be recorded of all its meetings
showing the disposition of all matters considered and passed upon by such
Committee, which shall be kept as a part of the records of this Corporation.
ARTICLE VI.
OFFICERS
Section 1. officers of the Corporation. The officers of the Corporation
shall consist of a President, one or more Executive or Senior Vice Presidents, a
Secretary, and a Treasurer, and may consist of such other Vice Presidents and
such Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, and
other officers, including a Chairman or a Controller, as the Board of
<PAGE>
Directors may from time to time elect. The title of any of such offices may also
include any descriptive administrative designation as the Board may determine.
Section 2. Election and Term. The officers of the Corporation shall be
elected by the Board of Directors. Such election shall be held at each annual
meeting of the Board and may be held at any regular or special meeting of the
Board. Each officer shall hold office until his death, resignation, retirement,
removal, disqualification, or his successor is elected and qualifies.
Section 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board with or without cause; but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
Section 4. Compensation. The compensation of each officer of the
Corporation shall be fixed by the Board of Directors after having first received
the recommendation of the Executive Compensation Committee @s to the amount of
compensation for any such officer.
Section 5. Chief Executive Officer. If a Chairman shall be duly
elected, the Chairman shall be the Chief Executive Officer of the Corporation,
otherwise the President shall be the Chief Executive Officer. Subject to the
control of the Board of Directors, the Chief Executive Officer shall be
responsible for the general supervision and conduct of the affairs of the
Corporation and for seeing that all other officers and agents of the Corporation
perform their duties. The Chief Executive Officer shall also be ex officio the
chairman of, and shall preside at all meetings of, the shareholders and of the
Board of Directors, and shall vote the stockholdings of the Corporation in any
other corporation.
Section 6. Chairman. If so duly elected, the Chairman shall be the
Chief Executive Officer of the Corporation, and shall have and exercise all
those powers and duties of the Chief Executive Officer as specified in Section 5
above of this Article.
Section 7. President. If there shall be a duly elected Chairman, the
President shall perform such duties as shall be assigned to him by the Board of
Directors or as directed by the Chairman, shall have such other powers as
otherwise vested in him by law, and in the absence or inability of the Chairman
to act, shall have and exercise all powers and duties of the Chairman. If there
shall not be a duly elected Chairman and unless otherwise directed by the Board
of Directors, the President shall be the Chief Executive Officer of the
Corporation, and shall have all those powers and duties of the Chief Executive
Officer as specified in Section 5 above of this Article.
<PAGE>
Section 8. Executive Vice Presidents. Any Executive Vice President
shall perform such duties as shall be assigned to him by the Board of Directors
or as directed by the Chairman or the President. In the absence or inability of
the Chairman and the President to act, the Executive Vice Presidents, in order
of their length of service as an elective Executive Vice President of the
Corporation, shall have and exercise all powers and duties of the Chairman and
of the President, unless the Board of Directors or the Executive Committee shall
otherwise determine.
Section 9. Senior Vice Presidents. Any Senior Vice President shall
perform such duties as shall be assigned to him by the Board of Directors or as
directed by the Chairman or the President or any Executive Vice President. In
the absence or inability of the Chairman., the President and all Executive Vice
Presidents to act, the Senior Vice Presidents, in order of their length of
service as an elective Senior Vice President of the Corporation, shall have and
exercise all powers and duties of the Chairman and of the President and of any
Executive Vice President, unless the Board of Directors or the Executive
Committee shall otherwise determine.
Section 10. Vice Presidents and Assistant Vice Presidents. Any Vice
President or Assistant Vice President s all perform such duties as shall be
specifically assigned to him by the Board of Directors or as directed by the
Chairman, the President or an Executive Vice President, but a Vice President or
an Assistant Vice President, unless otherwise determined by the Board of
Directors, shall not perform any of the herein specified duties of the Chairman
or the President even though the Chairman, the President and all Executive or
Senior Vice Presidents shall be absent or unable to act.
Section 11. Secretary. The Secretary shall: (a) keep the minutes of the
meetings of shareholders, of the Board of Directors and all committees in one or
more books provided for that purpose unless the Board of Directors shall elect a
Secretary to the Board of the sole purpose of keeping such minutes; (b) see that
all notices are duly given in accordance with the provisions of these by-laws or
as required by law; (c) be custodian of the corporate records and of the seal of
the Corporation, and shall affix the corporate seal when appropriate or required
in connection with any authorized transactions; (d) keep a register of the post
office address of each shareholder which shall be furnished to the Secretary by
such shareholder; (e) sign with the Chairman, the President, or a Vice
President, certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors; (f) have
general supervision of the stock transfer records of the Corporation; (g) keep
or cause to be kept in the State of North Carolina at the Corporation's
registered office or principal place of business a record of the Corporation's
shareholders, giving the names and addresses of all shareholders and the number
and class of shares held by each, and
<PAGE>
prepare or cause to be prepared voting lists prior to each meeting of
shareholders as required by law; and (h) in general perform all duties incident
to the office of secretary and such other duties as from time to time may be
assigned to the Secretary by the Chairman, the President or the Board of
Directors.
Section 12. Assistant Secretaries. In the absence of the Secretary or
in the event of the Secretary's death, inability or refusal to act, the
Assistant Secretaries in the order of their length of service as Assistant
Secretary, unless otherwise determined by the Board of Directors, shall perform
the duties of the Secretary, and when so acting shall have all the powers of and
be subject to all the restrictions upon the Secretary. They shall perform, such
other duties as may be assigned to them by the Secretary, by the Chairman, the
President, or by the Board of Directors. Any Assistant Secretary may sign, with
the Chairman, the President or a Vice President, certificates for shares of the
Corporation.
Section 13. Treasurer. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in such
depositories as shall be selected in accordance with the provisions of these
by-laws; (b) prepare, or cause to be prepared, a true statement of the
Corporation's assets and liabilities as of the close of each quarter and each
fiscal year, all in reasonable detail, which statement shall be made and filed
at the Corporation's registered office or principal place of business in the
State of North Carolina within four months after the end of such fiscal year and
thereat kept available for a period of at least ten years; and (c) in general
perform all of the duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him by the Chairman, the
President or by the Board of Directors, or by these by-laws.
Section 14. Assistant Treasurers. In the absence of the Treasurer or in
the event of his death, inability or refusal to act, the Assistant Treasurers in
the order of their length of service as Assistant Treasurer, unless otherwise
determined by the Board of Directors, shall perform the duties of the Treasurer,
and when so acting shall have all the powers of and be subject to all the
restrictions upon the Treasurer. They shall perform such other duties as may be
assigned to them by the Chairman, the President, the Treasurer or by the Board
of Directors.
ARTICLE VII.
CONTRACTS, LOANS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any
<PAGE>
contract or execute deliver any instrument on behalf of the Corporation, and
such authority may he general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other orders for
the payments of money issued in the name of the Corporation shall be signed by
such officer or officers, agent or agents of the Corporation and in such manner
as shall from time to time be determined by resolution of the Board of
Directors.
Section 4. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such depositories as the Board of
Directors shall direct.
ARTICLE VIII.
SHARE CERTIFICATES AND THEIR TRANSFER; RECORD DATE
Section 1. Certificates for Shares. Certificates representing shares of
the Corporation shall be issued in such form as shall be determined by the Board
of Directors to each shareholder for all fully paid shares owned by such
shareholder. Such certificates of stock shall bear the signature of the
Chairman, the President, or a Vice President and of the Secretary or an
Assistant Secretary. All certificates for shares shall be consecutively numbered
or otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number and class of shares and the date
of issue, shall be entered on the stock records of the Corporation. If a
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the Corporation itself or an employee of the Corporation, the
signatures of any of the aforesaid officers upon a certificate may be facsimiles
or may be engraved, printed, or impressed. If a certificate is not so
countersigned or registered, at least one of the signatures of the aforesaid
officers thereon shall be manually so signed, and any other of which may be
facsimiles or may he engraved, printed or impressed. In case any officer who has
signed or whose facsimile or other signature has been placed upon such
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.
Section 2. Transfer of Shares. Transfer of shares of the
Corporation shall be made only on the stock transfer records of the
Corporation by the holder of record thereof or by his legal
<PAGE>
representative, who shall furnish proper evidence of his authority to transfer,
or by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary, and on surrender for cancellation of the certificate
for such shares.
Section 3. Lost Certificate. The Board of Directors may direct a new,
certificate to be issued in place of any certificate theretofore issued by the
Corporation claimed to have been lost or destroyed, upon receipt of affidavits
of such fact from the person claiming the certificate of stock to have been lost
or destroyed, as might reasonably be required by the Corporation. When
authorizing such issue of a new certificate, the Board of Directors shall
require that the owner of such lost or destroyed certificate, or his legal
representative, give the Corporation a bond in such sum as the Board may direct
as indemnity against any claim that may be made against the Corporation with
respect to the certificate claimed to have been lost or destroyed, except where
the Board of Directors by resolution finds that in the judgment of the directors
the circumstances justify omission of a bond.
Section 4. Closing Transfer Books and Fixing Record Date. For the
purpose of determining 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 in order to make a determination of shareholders for
any other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not to exceed fifty days.
If the stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such record date in any case to be not more than fifty days and,
in case of a meeting of shareholders, not less than ten days immediately
preceding the date on which the particular action, requiring such determination
of shareholders, is to be taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except
<PAGE>
where the determination has been made through the closing of the stock transfer
books and the stated period of closing has expired.
Section 5. Holder of Record. The Corporation may treat as the absolute
owner of shares the person in whose name the shares stand of record on its books
just as if that person had full competency, capacity and authority to exercise
all rights of ownership irrespective of any knowledge or notice to the contrary
or any description indicating a representative, pledge or other fiduciary
relation or any reference to any other instrument or to the rights of any other
person appearing upon its record or upon the share certificate, except that any
person furnishing to the Corporation proof of his appointment as a fiduciary
shall be treated as if he were a holder of its shares.
Section 6. Treasury Shares. Treasury shares of the Corporation shall
consist of such shares as have been issued and thereafter acquired but not
cancelled by the Corporation. Treasury shares shall not carry voting or
dividend rights.
ARTICLE IX.
GENERAL PROVISIONS
Section 1. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the provisions
of its charter.
Section 2. Seal. The corporate seal of the Corporation shall consist of
two concentric circles between which is the name of the Corporation and in the
center of which is inscribed SEAL; and such seal, as impressed on the margin
hereof, is hereby adopted as the corporate seal of the Corporation.
Section 3. Waiver of Notice. Whenever any notice is required to be
given to any shareholder or director by law, by the charter or by these by-laws,
a waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
Section 4. Fiscal Year. The fiscal year of the Corporation
shall be as fixed by the Board of Directors.
Section 5. Indemnification. Any person who at any time serves or has
served as a director, officer, employee or agent of the corporation, or who
serves or has served, at the request of the Corporation, as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise or as a trustee or administrator under an employee benefit
plan, shall have a right to be indemnified by the corporation against all
liability and litigation expense, including reasonable attorneys'
<PAGE>
fees, arising out of his status as such or his activities in any of the
foregoing capacities; provided, however, that the corporation may not indemnify
or agree to indemnify a person against liability or litigation expense incurred
on account of activities which were at the time taken known or believed to be
clearly in conflict with the best interests of the corporation. Any person who
at any time serves or has served in any of the capacities described in the
preceding sentence, in addition to the right to be indemnified for liability and
litigation expense, shall have the right to be indemnified by the corporation
against the reasonable costs, expenses, and attorneys' fees incurred in
connection with the enforcement of indemrights provided by this by-law.
The Board of Directors of the corporation shall take all such action as
may be necessary and appropriate to authorize the corporation to pay the
indemnification required by this by-law, including without limitation, to the
extent needed, making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him
and giving notice to, and obtaining approval by, the shareholders of the
corporation.
Any person who at any time after the adoption of this by-law serves or
has served in any of the aforesaid capacities for or on behalf of the
corporation shall be deemed to he doing or to have done so in reliance upon, and
as consideration for, the right of indemnification provided herein. Such right
shall inure to the benefit of the legal representatives of any such person and
shall not be exclusive of any other rights to which such person may be entitled
apart from the provision of this bylaw. (amended 27 April 1987)
ARTICLE X.
AMENDMENTS
Except as otherwise provided herein, these by-laws may be amended or
repealed and new by-laws may be adopted by the affirmative vote of a majority of
the directors then holding office at any regular or special meeting of the Board
of Directors . Provided however, the Board of Directors shall have no power to
adopt a by-law or an amendment to a by-law: prescribing quorum or voting
requirements for acting by shareholders or directors different from those
prescribed by law; (2) increasing or decreasing the number of directors; or (3)
classifying and staggering the election of directors. Any such by-law or
amendment can be adopted only by the shareholders.
No by-law adopted or amended by the shareholders shall be amended or
repealed by the Board of Directors, except to the extent that such by-law
expressly authorizes its amendment or repeal by the Board of Directors.
Certificate of Incorporation
of
ROCHARD IMPORTS INCORPORATED
under Section 402 of the Business Corporation Law
Filed By CYMROT, WOLIN & SIMON
Office and Post Office Address
660 Madison Avenue
New York, N.Y. 10021
STATE OF NEW YORK
DEPARTMENT OF STATE
TAX $10
FILING FEE $50
FILED OCT 31 1972
/s/ John P. Lorenzo
Secretary of State
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
ROCHARD IMPORTS, INCORPORATED
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
The undersigned, being the president and the secretary of Rochard Imports,
Incorporated, do hereby certify and set forth:
1. The name of the Corporation is Rochard Imports, Incorporated.
2. The Certificate of Incorporation of Rochard Imports, Incorporated was
filed by the Department of State on the 31st day of October, 1972.
3. Paragraph (1) of the Certificate of Incorporation of Rochard Imports,
Incorporated, which sets forth the name of the Corporation, is hereby amended to
read:
(1) The name of the Corporation is Rochard, Inc.
4. The amendment to the Certificate of Incorporation of Rochard Imports,
Incorporated was authorized by a vote of the Board of Directors followed by the
affirmative vote of the holders of the majority of all of the outstanding shares
entitled to vote thereon at a meeting of the shareholders of said Corporation
duly called and held on the 26th day of September, 1989, a quorum being present.
IN WITNESS WHEREOF, the undersigned have executed and signed this
Certificate this 28th day of September, 1989.
/s/ Richard Sonking
--------------------------------
RICHARD SONKING, PRESIDENT
/s/ Ruth K. Sonking
--------------------------------
RUTH K. SONKING, SECRETARY
<PAGE>
STATE OF NEW YORK )
)ss:
COUNTY OF NASSAU )
RICHARD SONKING, being duly sworn says: I am the President of Rochard
Imports, Incorporated. I have read the annexed Certificate of Amendment of the
Certificate of Incorporation of Rochard Imports, Incorporated, know the contents
thereof and the same are true to my knowledge.
/s/ Richard Sonking
------------------------------
RICHARD SONKING
Sworn to before me on
September 28, 1989
HARVEY S. BARER
NOTARY PUBLIC, State of New York
No. 80-9513100
Qualified in Nassau County
Commission Expires June 30, 1991
STATE OF NEW YORK )
)ss:
COUNTY OF NASSAU )
RUTH K. SONKING, being duly sworn says: I am the Secretary of Rochard
Imports, Incorporated. I have read the annexed Certificate of Amendment of the
Certificate of Incorporation of Rochard Imports, Incorporated, know the contents
thereof and the same are true to my knowledge.
/s/ Ruth K. Sonking
------------------------------
RUTH K. SONKING
Sworn to before me on
September 28, 1989
/s/ Harvey S. Barer
HARVEY S. BARER
NOTARY PUBLIC, State of New York
No. 80-9513100
Qualified in Nassau County
Commission Expires June 30, 1991
BY-LAWS
of
ROCHARD, INC.
(A New York Corporation)
------------------------
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise
requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "Business Corporation Law" means the Business Corporation
Law of the State of New York, as amended from time to time.
1.5 "By-laws" means the initial by-laws of the Corporation, as
amended from time to time.
1.6 "Certificate of Incorporation" means the initial
certificate of incorporation of the Corporation, as amended, supplemented or
restated from time to time.
<PAGE>
2
1.7 "Chairman" means the Chairman of the Board of Directors of
the Corporation.
1.8 "Corporation" means Rochard, Inc.
1.9 "Directors" means directors of the Corporation.
1.10 "Entire Board" means the total number of Directors that
the Corporation would have if there were no vacancies.
1.11 "Office of the Corporation" means the executive office of
the Corporation, anything in section 102(10) of the Business Corporation Law to
the contrary notwithstanding.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Shareholders" means shareholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the
Corporation.
ARTICLE 2
Shareholders
2.1 Place of Meetings. Every meeting of Shareholders shall be
held at the office of the Corporation or at such other place within or without
the State of New York as shall be specified or fixed in the notice of such
meeting or in the waiver of notice thereof.
2.2 Annual Meeting. A meeting of Shareholders shall be held
annually for the election of Directors and the transaction of other business at
such hour and on
<PAGE>
3
such business day in May or June as may be determined by the Board and
designated in the notice of meeting.
2.3 Special Meeting for Election of Directors, Etc. If the
annual meeting of Shareholders for the election of Directors and the transaction
of other business is not held within the month specified in Section 2.2 hereof,
the Board may call a special meeting of Shareholders for the election of
Directors and the transaction of other business as soon thereafter as
convenient.
2.4 Other Special Meetings. A special meeting of Shareholders
(other than a special meeting for the election of Directors), unless otherwise
prescribed by statute, may be called at any time by the Board or by the
President or by the Secretary. At any special meeting of Shareholders only such
business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section 2.6 hereof or
in any waiver of notice thereof given pursuant to Section 2.7 hereof.
2.5 Fixing Record Date. 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 corporate
action in writing without a meeting, or to receive payment of any dividend or
other distribution or allotment of any rights, or any other lawful action, the
Board may fix, in advance, a record date. Such date shall not be more than 50
nor less than 10 days before the date of such meeting, nor more than 50 days
prior to any other action. If no such record date is fixed:
<PAGE>
4
2.5.1 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 no
notice is given, the day on which the meeting is held; and
2.5.2 the record date for determining Shareholders for any
purpose other than that specified in Section 2.5.1 shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
When a determination of Shareholders entitled to notice of or to vote at any
meeting of Shareholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Shareholders. Except as otherwise
provided in Sections 2.5 and 2.7 hereof, whenever under the provisions of any
statute, the Certificate of Incorporation or these By-laws, Shareholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date and hour of the meeting and, unless it is the
annual meeting, indicating that it is being issued by or at the direction of the
person or persons calling the meeting. Notice of a special meeting shall also
state the purpose or purposes for which the meeting is called. If, at any
meeting, action is proposed to be taken which would, if taken, entitle
Shareholders fulfilling the requirements of section 623 of the Business
Corporation Law ("Section 623") to receive payment for their shares, the notice
of such meeting shall include a statement of that purpose and to that effect and
shall be accompanied by a copy of Section 623 or an outline of its material
terms. Unless otherwise provided by any
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5
statute, the Certificate of Incorporation or these By-laws, a copy of the notice
of any meeting shall be given, personally or by first class mail, not fewer than
ten nor more than fifty days before the date of the meeting, to each Shareholder
entitled to notice of or to vote at such 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. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, with
postage prepaid, directed to the Shareholder at his or her address as it appears
on the records of the Corporation, or, if the Shareholder shall have filed with
the Secretary a written request that notices be mailed to some other address,
then directed to the Shareholder at such other address. An affidavit of the
Secretary or other person giving the notice or of the transfer agent of the
Corporation that the notice required by this Section 2.6 has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
When a meeting is adjourned to another time or place, 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, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each Shareholder of record on the new record date who is entitled to notice.
2.7 Waivers of Notice. Notice of meeting need not be given to
any Shareholder who submits a signed waiver of notice, in person or by proxy,
whether before or after the meeting. The attendance of any Shareholder at a
meeting, in person
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6
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 such
Shareholder.
2.8 List of Shareholders. A list of Shareholders as of the
record date, certified by the officer of the Corporation responsible for its
preparation, or by a transfer agent, 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, or
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 Shareholders entitled to vote
thereat may vote at such meeting.
2.9 Quorum of Shareholders; Adjournment. Except as otherwise
provided by any statute, the Certificate of Incorporation or these By-laws, the
holders of one-third of all outstanding shares entitled to vote at any meeting
of Shareholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at such meeting, provided that when a
specified item of business is required to be voted on by a class or series (if
the Corporation shall then have outstanding shares of more than one class or
series) voting as a class, the holders of a majority of the shares of such class
or series shall constitute a quorum (as to such class or series) for the
transaction of such item of business. When a quorum is once present to organize
a meeting of Shareholders, it is not broken by the subsequent withdrawal of any
Shareholders. The holders of a majority of the shares present in person or repre
sented by proxy at any meeting of Shareholders, including an adjourned meeting,
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7
whether or not a quorum is present, may adjourn such meeting to another time and
place.
2.10 Voting; Proxies. Unless otherwise provided in the
Certificate of Incorporation, every Shareholder of record shall be entitled at
every meeting of Shareholders to one vote for each share standing in his or her
name on the record of Shareholders determined in accordance with Section 2.5
hereof. If the Certificate of Incorporation provides for more or less than one
vote for any share on any matter, each reference in the By-laws or the Business
Corporation Law to a majority or other proportion of shares shall refer to such
majority or other proportion of the votes of such shares. The provisions of
section 612 of the Business Corporation Law shall apply in determining whether
any shares may be voted and the persons, if any, entitled to vote such shares,
but the Corporation shall be protected in assuming that the persons in whose
names shares stand on the share ledger of the Corporation are entitled to vote
such shares. Holders of redeemable shares are not entitled to vote after the
notice of redemption is mailed to such holders and a sum sufficient to redeem
the shares has been deposited with a bank or trust company under an irrevocable
obligation to pay the holders the redemption price on surrender of the shares.
At any meeting of Shareholders (at which a quorum was present to organize the
meeting), all matters, except as otherwise provided by statute or by the
Certificate of Incorporation or by these By-laws, shall be decided by a majority
of the votes cast at such meeting by the holders of shares present in person or
represented by proxy and entitled to vote thereon, whether or not a quorum is
present when the vote is taken. In voting on any question on which a vote by
ballot is required by law or is demanded by any Shareholder entitled to vote,
the voting
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8
shall be by ballot. Each ballot shall be signed by the Shareholder voting or the
Shareholder's proxy and shall state the number of shares voted. On all other
questions, the voting may be viva voce. Each Shareholder entitled to vote at a
meeting of Shareholders or to express consent or dissent without a meeting may
authorize another person or persons to act for such Shareholder by proxy. The
validity and enforceability of any proxy shall be determined in accordance with
section 609 of the Business Corporation Law. Every proxy shall be revocable at
the pleasure of the Shareholder executing it, except as otherwise provided by
section 609 of the Business Corporation Law.
2.11 Voting Procedures and Inspectors of Election at Meetings
of Shareholders. The Board, in advance of any meeting of Shareholders, may
appoint one or more inspectors to act at the meeting or any adjournment thereof.
The Board may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate has been appointed
by the Board or is able to act at a meeting, the person presiding at the meeting
may appoint, and on the request of any Shareholder entitled to vote thereat
shall appoint, one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of 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 inspector or inspectors 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 and 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,
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9
ballots or consents and determine the result, and shall 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 any Shareholder entitled to
vote thereat, the inspector or inspectors shall make a report in writing of any
challenge, question or matter determined by the inspector or inspectors and
execute a certificate of any fact found by the inspector or inspectors. Any
report or certificate made by the inspector or inspectors shall be prima facie
evidence of the facts stated and of the vote as certified by the inspector or
inspectors. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of their duties. Unless otherwise
provided by the Board, 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 shall
be determined by the person presiding at the meeting and shall be announced at
the meeting. No ballot, proxies or votes, or any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the polls
unless the courts of the State of New York upon application by a Shareholder
shall determine otherwise.
2.12 Organization. At each meeting of Shareholders, the
Chairman, or in the absence of the Chairman the President, or in the absence of
the President a Vice President, and in case more than one Vice President shall
be present, that Vice President designated by the Board (or in the absence of
any such designation, the most senior Vice President, based on age, present),
shall act as chairman of the meeting. The Secretary, or in his or her absence
one of the Assistant Secretaries, shall act as secretary of the meeting. In case
none of the officers above designated to act as chairman or secretary of the
meeting, respectively, shall be present, a chairman or a secretary of the
meeting,
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10
as the case may be, shall be chosen by a majority of the votes cast at such
meeting by the holders of shares present in person or represented by proxy and
entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings
of Shareholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present may
be changed by a majority of the votes cast at such meeting by the holders of
shares present in person or represented by proxy and entitled to vote at the
meeting.
2.14 Written Consent of Shareholders Without a Meeting.
Whenever the 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 or to be taken, signed by the holders of all outstanding shares
of the Corporation entitled to vote thereon. Such consent shall have the same
effect as a unanimous vote of Shareholders. This Section 2.14 shall not be
construed to alter or modify the provisions of any section or any provision in
the Certificate of Incorporation not inconsistent with the Business Corporation
Law under which the written consent of the holder of less than all outstanding
shares of the Corporation is sufficient for corporate action.
ARTICLE 3
Directors
3.1 General Powers. Except as otherwise provided in the
Certificate of Incorporation, the business and affairs of the Corporation shall
be managed by or under the direction of the Board. The Board may adopt such
rules and regulations, not
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11
inconsistent with the Certificate of Incorporation or these By-laws or
applicable laws, as it may deem proper for the conduct of its meetings and the
management of the Corpo ration. In addition to the powers expressly conferred by
these By-laws, the Board may exercise all powers and perform all acts that are
not required, by these By-laws or the Certificate of Incorporation or by
statute, to be exercised and performed by the Shareholders.
3.2 Number; Qualification; Term of Office. The number of
Directors constituting the Board shall not be fewer than three, except that if
and when all the shares of the Corporation are owned beneficially and of record
by fewer than three Shareholders, the number of Directors may be fewer than
three but not fewer than the number of Shareholders. Subject to the provisions
of the preceding sentence and of section 702(b) of the Business Corporation Law,
the number of Directors shall be fixed initially by the incorporator and may
thereafter be changed from time to time by action of the Shareholders or by
action of the Board. Each Director shall be at least eighteen years of age.
Directors need not be Shareholders. Each Director shall be elected to hold
office until the annual meeting of Shareholders next following such Director's
election and until such Director's successor shall have been elected and shall
qualify, or until such Director's earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by
statute or by the Certificate of Incorporation, be elected by a plurality of the
votes cast at a meeting of Shareholders by the holders of shares entitled to
vote in the election.
3.4 Newly Created Directorships and Vacancies. Unless
otherwise provided in the Certificate of Incorporation, newly created
Directorships resulting from
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12
an increase in the number of Directors and vacancies occurring in the Board for
any other reason, including the removal of Directors without cause, may be
filled by the affirmative votes of a majority of the entire Board, although less
than a quorum, or by a sole remaining Director, or may be elected by a plurality
of the votes cast by the holders of shares entitled to vote in the election at a
special meeting of Shareholders called for that purpose. A Director elected to
fill a vacancy, unless elected by the Shareholders, shall hold office until the
meeting of Shareholders next following such Director's election at which the
election of Directors is in the regular order of business and until such
Director's successor shall have been elected and shall qualify, or until such
Director's earlier death, resignation or removal.
3.5 Resignation. Any Director may resign at any time by
written notice to the Corporation. Such resignation shall take effect at the
time therein specified, and, unless otherwise specified in such resignation, the
acceptance of such resignation shall not be necessary to make it effective.
3.6 Removal. Subject to the provisions of section 706 of the
Business Corporation Law, (a) any or all of the Directors may be removed for
cause by vote of the Shareholders or by action of the Board and (b) any or all
of the Directors may be removed without cause by vote of the Shareholders.
3.7 Compensation. Each Director, in consideration of his or
her service as such, shall be entitled to receive from the Corporation such
amount per annum or such fees for attendance at Directors' meetings, or both, as
the Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in
connection with the performance of his or
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13
her duties. Each Director who shall serve as a member of any committee of
Directors in consideration of serving as such shall be entitled to such
additional amount per annum or such fees for attendance at committee meetings,
or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by
such Director in the performance of his or her duties. Nothing contained in this
Section 3.7 shall preclude any Director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Times and Places of Meetings. The Board may hold meetings,
both regular and special, either within or without the State of New York. The
times and places for holding meetings of the Board may be fixed from time to
time by resolution of the Board or (unless contrary to a resolution of the
Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where
the annual meeting of Shareholders for the election of Directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 hereof for special meetings of the Board or in a waiver of
notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be
held without notice at such times and at such places as shall from time to time
be determined by the Board.
3.11 Special Meetings. Special meetings of the Board may be
called by the Chairman, the President or the Secretary or by any two or more
Directors then
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14
serving on at least one day's notice to each Director given by one of the means
specified in Section 3.14 hereof other than by mail, or on at least three days'
notice if given by mail. Special meetings shall be called by the Chairman,
President or Secretary in like manner and on like notice on the written request
of any two or more of the Directors then serving.
3.12 Telephone Meetings. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of such
committee 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 Section 3.12 shall constitute
presence in person at such meeting.
3.13 Adjourned Meetings. A majority of the Directors present
at any meeting of the Board, including an adjourned meeting, whether or not a
quorum is present, may adjourn such meeting to another time and place. At least
one day's notice of any adjourned meeting of the Board shall be given to each
Director whether or not present at the time of the adjournment, if such notice
shall be given by one of the means specified in Section 3.14 hereof other than
by mail, or at least three days' notice if by mail. Any business may be
transacted at an adjourned meeting that might have been transacted at the
meeting as originally called.
3.14 Notice Procedure. Subject to Sections 3.11 and 3.17
hereof, whenever, under the provisions of any statute, the Certificate of
Incorporation or these By-laws, notice is required to be given to any Director,
such notice shall be deemed given effectively if given in person or by
telephone, by mail addressed to such Director
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15
at such Director's address as it appears on the records of the Corporation, with
postage thereon prepaid, or by telegram, telex, telecopy or similar means
addressed as aforesaid.
3.15 Waiver of Notice. Whenever the giving of any notice is
required by statute, the Certificate of Incorporation or these By-laws, a waiver
thereof, in writing, signed by the person or persons entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by 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 on the ground that the meeting has not been
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Directors or a committee of
Directors need be specified in any written waiver of notice unless so required
by statute, the Certificate of Incorporation or these By-laws.
3.16 Organization. At each meeting of the Board, the Chairman,
or in the absence of the Chairman the President, or in the absence of the
President a chairman chosen by a majority of the Directors present, shall
preside. The Secretary shall act as secretary at each meeting of the Board. In
case the Secretary shall be absent from any meeting of the Board, an Assistant
Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and all Assistant Secretaries,
the person presiding at the meeting may appoint any person to act as secretary
of the meeting.
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16
3.17 Quorum of Directors. The presence in person of a majority
of the entire Board shall be necessary and sufficient to constitute a quorum for
the transaction of business at any meeting of the Board.
3.18 Action by Majority Vote. Except as otherwise expressly
required by statute, the Certificate of Incorporation or these By-laws, the vote
of a majority of the Directors present at the time of the vote, if a quorum is
present at such time, shall be the act of the Board.
3.19 Action Without Meeting. 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 or of any committee thereof
may be taken without a meeting if all Directors or members of such committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board, by resolution adopted by a majority of the entire
Board, may designate from among its members, an executive committee and other
committees, each consisting of three or more Directors and each of which, to the
extent provided in the resolution, shall have all the authority of the Board,
except that no such committee shall have authority as to the following matters:
(i) the submission to Shareholders of any action that needs Shareholders'
approval under the Business Corporation Law, (ii) the filling of vacancies in
the Board or in any committee, (iii) the fixing of compensation of
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17
the Directors for serving on the Board or on any committee, (iv) the amendment
or repeal of the By-laws or the adoption of new By-laws or (v) the amendment or
repeal of any resolution of the Board which by its terms shall not be so
amendable or repealable. The Board may designate one or more Directors as
alternate members of any such committee, who may replace any absent member or
members at any meeting of such committee. Unless otherwise specified in the
resolution of the Board designating a committee, at all meetings of such
committee a majority of the total number of members of the committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of the members of the committee present at any meeting at which there is a
quorum shall be the act of the committee. Each committee shall keep regular
minutes of its meetings. Unless the Board otherwise provides, each committee
designated by the Board 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 conducts it business pursuant to Article 3 of
these By-laws.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a
President, a Secretary, a Treasurer and such other officers as the Board may
appoint, including a Chairman, one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers, who shall exercise such powers
and perform such duties as shall be determined from time to time by the Board.
The Board may designate one or more Vice Presidents as Executive Vice Presidents
and may use descriptive words or phrases to
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18
designate the standing, seniority or areas of special competence of the Vice
Presidents elected or appointed by it. Any two or more offices may be held by
the same person, except the offices of President and Secretary; provided,
however, that when all of the issued and outstanding shares of the Corporation
are owned by one person, such person may hold all or any combination of offices.
5.2 Appointment. The officers of the Corporation shall be
chosen by the Board at its annual meeting or at such other time or times as the
Board shall determine.
5.3 Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that the officer
is also a Director.
5.4 Term of Office. Each officer of the Corporation shall hold
office for the term for which he was elected and until such officer's successor
is chosen and qualifies or until such officer's earlier death, resignation or
removal. Any vacancy occurring in any office of the Corporation may be filled by
the Board. Any officer may resign at any time upon written notice to the
Corporation. Such resignation shall take effect at the date of receipt of such
notice or at such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any. Any officer elected or appointed by
the Board may be removed at any time, with or without cause, by vote of a
majority of the entire Board. The removal of an officer without cause shall be
without prejudice to the
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19
officer's contract rights, if any. The election or appointment of an officer
shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been elected,
shall preside at all meetings of the Board and shall exercise such powers and
perform such other duties as shall be determined from time to time by the Board.
5.7 President. The President shall be the Chief Executive
Officer of the Corporation and shall have general supervision over the business
of the Corporation, subject, however, to the control of the Board and of any
duly authorized committee of Directors. The President shall preside at all
meetings of the Shareholders and at all meetings of the Board at which the
Chairman (if one shall have been elected) is not present. The President may sign
and execute in the name of the Corporation deeds, mortgages, bonds, contracts
and other instruments except in cases in which the signing and execution thereof
shall be expressly delegated by the Board or by these By-laws to some other
officer or agent of the Corporation or shall be required by statute otherwise to
be signed or executed and, in general, the President shall perform all duties
incident to the office of President of a corporation and such other duties as
may from time to time be assigned to the President by the Board.
5.8 Vice Presidents. At the request of the President, or, in
the President's absence, at the request of the Board, the Vice Presidents shall
(in such order as may be designated by the Board or, in the absence of any such
designation, in order of seniority based on age) perform all of the duties of
the President and, in so
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20
performing, shall have all the powers of, and be subject to all restrictions
upon, the President. Any Vice President may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts or other instruments, except in
cases in which the signing and execution thereof shall be expressly delegated by
the Board or by these Bylaws to some other officer or agent of the Corporation,
or shall be required by statute otherwise to be signed or executed, and each
Vice President shall perform such other duties as from time to time may be
assigned to such Vice President by the Board or by the President.
5.9 Secretary. The Secretary shall attend all meetings of the
Board and of the Shareholders and shall record all the proceedings of the
meetings of the Board and of the Shareholders in a book to be kept for that
purpose, and shall perform like duties for committees of the Board, when
required. The Secretary shall give, or cause to be given, notice of all special
meetings of the Board and of the Shareholders and shall perform such other
duties as may be prescribed by the Board or by the President, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant Secretary,
shall have authority to impress the same on any instrument requiring it, and
when so impressed the seal may be attested by the signature of the Secretary or
by the signature of such Assistant Secretary. The Board may give general
authority to any other officer to impress the seal of the Corporation and to
attest the same by such officer's signature. The Secretary or an Assistant
Secretary may also attest all instruments signed by the President or any Vice
President. The Secretary shall have charge of all the books, records and papers
of the Corporation relating to its organization and management, shall
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21
see that the reports, statements and other documents required by statute are
properly kept and filed and, in general, shall perform all duties incident to
the office of Secretary of a corporation and such other duties as may from time
to time be assigned to the Secretary by the Board or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody
of, and be responsible for, all funds, securities and notes of the Corporation;
receive and give receipts for moneys due and payable to the Corporation from any
sources whatsoever; deposit all such moneys and valuable effects in the name and
to the credit of the Corporation in such depositaries as may be designated by
the Board; against proper vouchers, cause such funds to be disbursed by checks
or drafts on the authorized depositaries of the Corporation signed in such
manner as shall be determined by the Board and be responsible for the accuracy
of the amounts of all moneys so disbursed; regularly enter or cause to be
entered in books or other records maintained for the purpose full and adequate
account of all moneys received or paid for the account of the Corporation; have
the right to require from time to time reports or statements giving such
information as the Treasurer may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; render to the President or the Board, whenever the President or the Board
shall require the Treasurer so to do, an account of the financial condition of
the Corporation and of all financial transactions of the Corporation; exhibit at
all reasonable times the records and books of account to any of the Directors
upon application at the office of the Corporation where such records and books
are kept; disburse the funds of the Corporation as ordered by the Board; and, in
general, perform all duties incident to the
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22
office of Treasurer of a corporation and such other duties as may from time to
time be assigned to the Treasurer by the Board or the President.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the Pres ident.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution of Contracts. The Board, except as otherwise
provided in these By-laws, may prospectively or retroactively authorize any
officer or officers, employee or employees or agent or agents, in the name and
on behalf of the Corporation, to enter into any contract or execute and deliver
any instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
6.2 Loans. The Board may prospectively or retroactively
authorize the President or any other officer, employee or agent of the
Corporation to effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances the person so authorized may make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, and, when authorized by the Board so to do,
may pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority
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conferred by the Board may be general or confined to specific instances, or
otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders
for the payment of money out of the funds of the Corporation and all evidences
of indebtedness of the Corporation shall be signed on behalf of the Corporation
in such manner as shall from time to time be determined by resolution of the
Board.
6.4 Deposits. The funds of the Corporation not otherwise
employed shall be deposited from time to time to the order of the Corporation
with such banks, trust companies, investment banking firms, financial
institutions or other depositaries as the Board may select or as may be selected
by an officer, employee or agent of the Corporation to whom such power to select
may from time to time be delegated by the Board.
ARTICLE 7
SHARES AND DIVIDENDS
7.1 Certificates Representing Shares. The shares of the
Corporation shall be represented by certificates in such form (consistent with
the provisions of section 508 of the Business Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the Chairman or the
President or a Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer, and may be impressed with the seal of
the Corporation or a facsimile thereof. The signatures of the officers upon a
certificate may be facsimiles, if the certificate is coun tersigned by a
transfer agent or registered by a registrar other than the Corporation itself
<PAGE>
24
or its employee, or the shares are listed on a registered national securities
exchange. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon any certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, such certificate may, unless otherwise ordered by the Board, be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of the Corporation
shall be made only on the books of the Corporation by the holder thereof or by
the holder's duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares
properly endorsed for transfer and upon payment of all necessary transfer taxes.
Every certificate exchanged, returned or surrendered to the Corporation shall be
marked "Cancelled," with the date of cancellation, by the Secretary or an
Assistant Secretary or the transfer agent of the Corporation. A person in whose
name shares shall stand on the books of the Corporation shall be deemed the
owner thereof to receive dividends, to vote as such owner and for all other
purposes as respects the Corporation. No transfer of shares shall be valid as
against the Corporation, its Shareholders and creditors for any purpose, except
to render the transferee liable for the debts of the Corporation to the extent
provided by law, until such transfer shall have been entered on the books of the
Corporation by an entry showing from and to whom transferred.
<PAGE>
25
7.3 Transfer and Registry Agents. The Corporation may from
time to time maintain one or more transfer offices or agents and registry
offices or agents at such place or places as may be determined from time to time
by the Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The
holder of any shares of the Corporation shall immediately notify the Corporation
of any loss, destruction, theft or mutilation of the certificate representing
such shares, and the Corporation may issue a new certificate to replace the
certificate alleged to have been lost, destroyed, stolen or mutilated. The Board
may, in its discretion, as a condition to the issue of any such new certificate,
require the owner of the lost, destroyed, stolen or mutilated certificate, or
his or her legal representatives, to make proof satisfactory to the Board of
such loss, destruction, theft or mutilation and to advertise such fact in such
manner as the Board may require, and to give the Corporation and its transfer
agents and registrars, or such of them as the Board may require, a bond in such
form, in such sums and with such surety or sureties as the Board may direct, to
indemnify the Corporation and its transfer agents and registrars against any
claim that may be made against any of them on account of the continued existence
of any such certificate so alleged to have been lost, destroyed, stolen or
mutilated and against any expense in connection with such claim.
7.5 Rules and Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws or
with the Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares.
<PAGE>
26
7.6 Restriction on Transfer of Shares. If any two or more
Shareholders or subscribers for shares of the Corporation shall enter into any
agreement whereby the rights of any one or more of them to sell, assign,
transfer, mortgage, pledge, hypothecate, or transfer on the books of the
Corporation, any or all of such shares held by them shall be abridged, limited
or restricted, and if a copy of such agreement shall be filed with the
Corporation and shall contain a provision that the certificates representing
shares subject to it shall bear a reference to such agreement, then all
certificates representing shares covered or affected by said agreement shall
have such reference thereto endorsed thereon; and such shares shall not
thereafter be transferred on the books of the Corporation except in accordance
with the terms and provisions of such agreement.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the
Certificate of Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or
make other distributions on its outstanding shares in such amounts and
at such time or times as it, in its discretion, shall deem advisable
giving due consideration to the condition of the affairs of the
Corporation;
7.7.2 may use and apply, in its
discretion, any of the surplus of the Corporation in purchasing or
acquiring any shares of the Corporation, or purchase warrants therefor,
in accordance with law, or any of its bonds, debentures, notes, scrip
or other securities or evidences of indebtedness; and
7.7.3 may set aside from time to time out
of such surplus or net profits such sum or sums as, in its discretion,
it may think proper, as a
<PAGE>
27
reserve fund to meet contingencies, or for equalizing dividends or for
the purpose of maintaining or increasing the property or business of
the Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnity Undertaking. To the extent not prohibited by
law, the Corporation shall indemnify any person who is or was made, or
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a Director or officer of the Corporation, or, at the relevant time being or
having been such a Director or officer, is or was serving in any capacity at the
request of the Corporation for any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other Entity"),
against judgments, fines, penalties, excise taxes, amounts paid in settlement
and costs, charges and expenses (including attorneys' fees, disbursements and
other charges). Notwith standing the foregoing, no indemnification shall be made
to or on behalf of any Director or officer of the Corporation if a judgment or
other final adjudication adverse to such Director or officer establishes that
(a) his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated or
(b) he or she personally gained in fact a financial profit or other
<PAGE>
28
advantage to which he or she was not legally entitled. Persons who at the
relevant time are not or were not Directors or officers of the Corporation may
be similarly indemnified in respect of service to the Corporation or to an Other
Entity at the request of the Corporation to the extent the Board at any time
specifies that such persons are entitled to the benefits of this Article 8.
8.2 Advancement of Expenses. The Corporation shall, from time
to time, reimburse or advance to any Director or officer or other person
entitled to indemnification hereunder the funds necessary for payment of
expenses, including attorneys' fees, disbursements and other charges, incurred
in connection with any Proceeding, in advance of the final disposition of such
Proceeding; provided, however, that, if required by the Business Corporation
Law, such expenses incurred by or on behalf of any Director or officer or other
person may be paid in advance of the final disposition of a Proceeding only upon
receipt by the Corporation of an undertaking, by or on behalf of such Director
or officer (or other person indemnified hereunder), to repay any such amount so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right of appeal that such Director, officer or other
person is not entitled to be indemnified for such expenses.
8.3 Authorization for Indemnification of Directors and
Officers. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in section 722 of the Business Corporation Law shall be entitled to
indemnification as authorized in such section. Except as provided in the next
preceding sentence, any indemnification required or permitted by applicable law
or by any provisions of this Certificate of Incorporation,
<PAGE>
29
unless ordered by a court, shall be made by the Corporation only if authorized
in the specific case: (a) by the Board acting by a quorum consisting of
Directors who are not parties to such proceeding upon a finding that the
Director or officer has met the standard of conduct set forth in section 722, or
established pursuant to section 721, as the case may be, of the Business
Corporation Law (the "Applicable Standard"); or (b) if a quorum under clause (a)
is not obtainable or, even if obtainable, a quorum of disinterested directors so
directs, (1) by the Board upon the opinion in writing of independent legal
counsel that indemnification is proper in the circumstances because the
Applicable Standard has been met by such Director or officer, or (2) by the
Shareholders upon a finding that the Director or officer has met the Applicable
Standard.
8.4 Rights Not Exclusive. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, the Certificate of
Incorporation, these By-laws, any agree ment, any vote of Shareholders or
disinterested Directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
8.5 Continuation of Benefits. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article 8 shall continue as to a person who has ceased to be a Director
or officer (or other person indemnified hereunder) and shall inure to the
benefit of the executors, administrators, legatees and distributees of such
person.
<PAGE>
30
8.6 Insurance. The Corporation shall have the power to
purchase and maintain insurance to indemnify (a) itself for any obligation that
it incurs as a result of the indemnification of Directors and officers under the
provisions of this Article 8 or (b) any Director or officer in instances in
which he or she may be indemnified under the provisions of this Article 8,
against any liability asserted, whether or not the Corporation would have the
power to indemnify such person against such liability under the laws of the
State of New York, subject to the limitations imposed under section 726 of the
Business Corporation Law (or any successor section).
8.7 Security. To secure payment of any obligation of
indemnification or advancement of expenses provided by, or granted pursuant to,
this Article 8, the Corporation may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to insure the payment of such sums as may become necessary to effect
indemnification or advancement of expenses as provided herein.
8.8 Binding Effect. The provisions of this Article 8 shall be
a contract between the Corporation, on the one hand, and each Director and
officer who serves in such capacity at any time while this Article 8 is in
effect and any other person indemnified hereunder, on the other hand, pursuant
to which the Corporation and each such Director, officer or other person intend
to be legally bound. No repeal or modification of this Article 8 shall affect
any rights or obligations with respect to any state of facts then or theretofore
existing or thereafter arising or any proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
<PAGE>
31
8.9 Procedural Rights. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board, its
independent legal counsel and its Shareholders) to have made a determination
prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor an
actual determination by the Corporation (including its Board, its independent
legal counsel and its Shareholders) that such person is not entitled to such
indemnification or reimbursement or advancement of expenses shall constitute a
defense to the action or create a presumption that such person is not so
entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
8.10 Service Deemed at Corporation's Request. Any Director or
officer of the Corporation serving in any capacity (a) another corporation of
which a majority of the shares entitled to vote in the election of its directors
is held, directly or indirectly, by the Corporation or (b) any employee benefit
plan of the Corporation or any corporation referred to in clause (a) shall be
deemed to be doing so at the request of the Corporation.
<PAGE>
32
8.11 Election of Applicable Law. Any person entitled to be
indemnified or to reimbursement or advancement of expenses as a matter of right
pursuant to this Article 8 may elect to have the right to indemnification or
reimbursement or advancement of expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events
giving rise to the applicable Proceeding, to the extent permitted by law, or on
the basis of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be made,
by a notice in writing to the Corporation, at the time indemnification or
reimbursement or advancement of expenses is sought; provided, however, that if
no such notice is given, the right to indemnification or reimbursement or
advancement of expenses shall be determined by the law in effect at the time
indemnification or reimbursement or advancement of expenses is sought.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. There shall be kept at the principal
office of the Corporation correct and complete records and books of account
recording the financial transactions of the Corporation and minutes of the
proceedings of the Shareholders, the Board and any committee of the Board. The
Corporation shall keep at the office of the Corporation in New York, or at the
office of the transfer agent or registrar of the Corporation, 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.
<PAGE>
33
9.2 Form of Records. Any records maintained by the Corporation
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise
provided by law, the Board shall determine from time to time whether, and, if
allowed, when and under what conditions and regulations, the accounts, books,
minutes and other records of the Corporation, or any of them, shall be open to
the Shareholders for inspection.
ARTICLE 10
SEAL
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words "Corporate Seal, New
York". The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or otherwise reproduced.
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and may be
changed, by resolution of the Board.
<PAGE>
34
ARTICLE 12
PROXIES AND CONSENTS
Unless otherwise directed by the Board, the President, any
Vice President, the Secretary or the Treasurer, or any one of them, may execute
and deliver on behalf of the Corporation proxies respecting any and all shares
or interests of any Other Entity owned by the Corporation appointing such person
or persons as the officer executing the same shall deem proper to represent and
vote the shares or interests so owned at any and all meetings of holders of
shares or interests, whether general or special, and/or to execute and deliver
consents respecting such shares or interests; or any of the aforesaid officers
may attend any meeting of the holders of shares or interests of such Other
Entity and thereat vote or exercise any or all other powers of the Corporation
as the holder of such shares or interests.
ARTICLE 13
EMERGENCY BY-LAWS
Unless the Certificate of Incorporation provides otherwise, the
following provisions of this Article 13 shall be effective during an emergency,
which is defined as when, in the event of attack, the New York State Defense
Council orders the effectiveness of emergency by-laws. During such emergency:
13.1 Notice to Board Members. Any one member of the Board or
any one of the following officers: Chairman, President, any Vice President,
Secretary, or Treasurer, may call a meeting of the Board. Notice of such meeting
need be given only to those Directors whom it is practicable to reach, and may
be given in any practical
<PAGE>
35
manner, including by publication and radio. Such notice shall be given at least
six hours prior to commencement of the meeting.
13.2 Temporary Directors and Quorum. One or more officers of
the Corporation present at the emergency Board meeting, as is necessary to
achieve a quorum, shall be considered to be Directors for the meeting, and shall
so serve in order of rank, and within the same rank, in order of seniority. In
the event that less than a quorum of the Directors are present (including any
officers who are to serve as Directors for the meeting), those Directors present
(including the officers serving as Directors) shall constitute a quorum.
13.3 Actions Permitted To Be Taken. The Board as constituted
in Section 13.2, and after notice as set forth in Section 13.1 may:
13.3.1 prescribe emergency powers to any officer
of the Corporation;
13.3.2 delegate to any officer or Director, any of
the powers of the Board;
13.3.3 designate lines of succession of officers
and agents, in the event that any of them are unable to discharge
their duties;
13.3.4 relocate the principal place of business,
or designate successive or simultaneous principal places of business;
and
13.3.5 take any other convenient, helpful, or
necessary action to carry on the business of the Corporation.
<PAGE>
36
ARTICLE 14
AMENDMENTS
These By-laws may be altered, amended, or repealed and new
By-laws may be adopted by a vote of the holders of shares entitled to vote in
the election of Directors or by a vote of two-thirds of the entire Board.
Notwithstanding the preceding sentence, none of the provisions of this Article
14 shall be altered, amended or repealed by the Board. Any By-laws adopted,
altered or amended by the Board may be altered, amended or repealed by the
Shareholders entitled to vote thereon only to the extent and in the manner
provided in the Certificate of Incorporation and these By-laws. If any Bylaw
regulating an impending election of Directors is adopted, altered, amended,
supplemented or repealed by the Board, such By-law shall be set forth in the
notice of the next meeting of Shareholders for election of Directors, together
with a concise statement of the changes made.
STATE OF
NORTH [SEAL] Department of The
CAROLINA Secretary of State
- --------------------------------------------------------------------------------
To all whom these presents shall come, Greetings:
I, Rufus L Edmisten, Secretary of State of the State of
North Carolina, do hereby certify the following and hereto
attached to be a true copy of
ARTICLES OF INCORPORATION
OF
RI ACQUISITION, INC.
the original of which was filed in this office on the 14th day of
December, 1992.
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed my official seal at the City of
Raleigh, this 14th day of December, 1992.
[SEAL] /s/ Rufus L. Edmisten
Secretary of State
- --------------------------------------------------------------------------------
<PAGE>
C-0317060
------------------
FILED
9:00 AM
DEC 14, 1992
RUFUS L. EDMISTEN
SECRETARY OF STATE
NORTH CAROLINA
ARTICLES OF INCORPORATION
OF
RI ACQUISITION, INC.
The undersigned does hereby submit these Articles of Incorporation
pursuant to ss. 55-2-02 of the General Statutes of North Carolina, and any
amendments thereto, for the purpose of forming a business corporation, and to
that end does hereby set forth the following:
ARTICLE I
---------
The name of the corporation is RI Acquisition, Inc.
ARTICLE II
----------
The class of shares, the aggregate number of shares of such class, and the
par value per each share of such class which the corporation shall have
authority to issue are as follows:
Par No. of
Class Value Shares
----- ----- ------
Common $0.01 10,000
ARTICLE III
-----------
The street and mailing address of the initial registered office of the
corporation is 2600 Charlotte Plaza, Mecklenburg County, Charlotte, North
Carolina 28244. The name of the initial registered agent at such address is Mark
R. Bernstein.
ARTICLE IV
----------
The name and address of the incorporator are:
Mark R. Bernstein
Parker, Poe, Adams & Bernstein
2600 Charlotte Plaza
Charlotte, North Carolina 28244
ARTICLE V
---------
To the fullest extent permitted by the North Carolina Business Corporation
Act as it exists or may hereafter be amended, a director of the corporation
shall not be liable to the corporation or any of its shareholders for monetary
damages for breach of duty as a director.
<PAGE>
IN WITNESS WHEREOF, the undersigned incorporator has hereunto set his hand
and seal, this 11th day of December, 1992.
/s/ Mark R. Bernstein (SEAL)
---------------------
Mark R. Bernstein, as Incorporator
Drawn by, return to:
Parker, Poe, et al.
2600 Charlotte Plaza
Charlotte, NC 28244
Attn.: John R. Hairr III
EGS/580
BYLAWS
OF
Holiday Products, Inc.
ARTICLE I
Offices
-------
Section 1. Principal Office. The principal office of the Corporation shall be
located in the City of Gastonia, County of Gaston, North Carolina,
or at such other place as the Board of Directors shall determine
from time to time.
Section 2. Registered Office. The registered office of the Corporation required
by law to be maintained in the State of North Carolina may be, but
need not be, identical with the principal office.
Section 3. Other Offices. The Corporation may have any number of additional
offices, at such other places as the Board of Directors may from
time to time determine, or as the affairs of the Corporation may
require.
ARTICLE II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings. All meetings of shareholders shall be held at the
principal office of the Corporation, or at such other place, either
within or without the State of North Carolina as shall be determined
by the Board of Directors or agreed upon by a majority of the
shareholders entitled to vote thereat and designated in the notice
of the meeting.
<PAGE>
Section 2. Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held on the fourth Monday in April of each year
if not a legal holiday, but if a legal holiday, on the next business
day, for the purpose of electing directors of the Corporation and
for the transaction of such other business as may be properly
brought before the meeting.
Section 3. Substitute Annual Meeting. If the annual meeting shall not be held
on the day designated by these Bylaws, a substitute annual meeting
may be called in accordance with the provisions of Section 4 of this
Article. A meeting so called shall be designated and treated for all
purposes as the annual meeting.
Section 4. Special Meetings. Special meetings of the shareholders may be called
at any time by the Chairman of the Board, the President, the
Secretary, or the Board of Directors of the Corporation, or by any
shareholder pursuant to written request of the holders of not less
than one-tenth of all stock entitled to vote. Special meetings shall
be held at the principal office of the Corporation, or at such other
place as shall be designated in the notice of meeting. Special
meetings called by shareholders pursuant to this provision shall be
held within thirty (30) days of the written request for the meeting
by shareholders.
Section 5. Notice of Meetings. Written or printed notice stating the time and
place of the meeting shall be delivered not less than ten nor more
than sixty days before the date thereof, either personally or by
mail, by or at the direction of the Chairman of the Board, the
President, the Secretary or other person calling the meeting, to
each shareholder of record entitled to vote at such meeting;
provided, that each shareholder, whether or not entitled to vote,
shall be given notice of any meeting called for the purpose of
approving a plan of merger or share exchange, a proposed sale of
assets other than in the ordinary course of business, or the
proposed dissolution of the Corporation.
In the case of an annual meeting, the notice of meeting need not
specifically state the business to be transacted thereat unless it
is a matter, other than the election of directors, on which the vote
of shareholders is expressly required by the provisions of the North
Carolina Business
-2-
<PAGE>
Corporation Act. In the case of a special meeting, the notice of
meeting shall specifically state the purpose or purposes for which
the meeting is called.
When a meeting is adjourned, it is not necessary to give any notice
of the adjourned meeting other than by announcement at the meeting
at which the adjournment is taken, unless a new record date is or
must be fixed under the provisions of the following Section 6. If a
new record date is or must be so fixed, notice of the adjourned
meeting must be given in accordance with this Section 5 to persons
who are shareholders as of the new record date.
Section 6. Record Date. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any
adjournment thereof or determining shareholders entitled to take any
other action, the Board of Directors may fix any future date as the
record date provided that such date is not more than seventy days
before the date set for the meeting or action. A new record date
must be established if the meeting is adjourned to a date more than
one hundred twenty days after the date fixed for the original
meeting.
Section 7. Voting Lists. On or before the second business day after notice of a
shareholder meeting is given, the Secretary shall prepare an
alphabetical list of the shareholders who are entitled to vote at
such shareholder meeting. The list shall be arranged by voting group
(and within each voting group by class or series of shares) and show
the address and number of shares held by each shareholder. The
shareholders list shall be available for inspection by any
shareholder, beginning two business days after notice of the meeting
is given and continuing through the meeting, at the Corporation's
principal office or at a place identified in the meeting notice in
the city where the meeting will be held.
Section 8. Quorum. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum exists with respect
to that matter. Unless the North Carolina Business Corporation Act
provides otherwise, a majority of the votes entitled to be cast on
the matter by the voting group shall constitute a quorum of that
voting group for action on that matter. If there
-3-
<PAGE>
is no quorum at the opening of a meeting of shareholders, such
meeting may be adjourned from time to time by the vote of a majority
of the shares voting on the motion to adjourn; and, at any adjourned
meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting. Once a
share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for
any adjournment of the meeting unless a new record date is or must
be set for the adjourned meeting.
Section 9. Proxies. Shares may be voted either in person or by one or more
agents authorized by a written proxy executed by the shareholder or
by his duly authorized attorney-in-fact. A proxy is not valid after
the expiration of eleven months from the date of its execution,
unless the person executing it specifies therein some other period
of time for which it is to continue in force, or limits its use to a
particular meeting.
Section 10. Voting of Shares. Unless the Articles of Incorporation provide
otherwise, each outstanding share having voting rights with respect
to a matter submitted to a vote at a meeting of shareholders shall
be entitled to one vote on such matter. If a quorum exists, action
on a matter (other than the election of directors) by a voting group
is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action, unless the
Articles of Incorporation, a Bylaw adopted by the shareholders or
the North Carolina Business Corporation Act requires a greater
number of affirmative votes. Voting on all matters, except the
election of directors, shall be by voice vote or by a show of hands,
unless the holders of one-tenth of the shares represented at the
meeting shall, prior to the voting on any matter, demand a ballot
vote on that particular matter.
Section 11. Informal Action by Shareholders. Any action which may be taken at a
meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be
signed by all of the persons who would be entitled to vote upon any
such action at a meeting, and filed with the Secretary of the
Corporation to be kept in the corporate minute book. Unless
otherwise fixed in accordance with
-4-
<PAGE>
Section 6 above or the North Carolina Business Corporation Act, the
record date for determining shareholders entitled to take action
without a meeting is the date the first shareholder signs the
consent. If the North Carolina Business Corporation Act requires
that notice of the proposed action be given to nonvoting
shareholders, written notice of the proposed action must be given to
the nonvoting shareholders at least ten days before the action is
taken by unanimous consent of the voting shareholders.
ARTICLE III
Directors
---------
Section 1. General Powers. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors or under the
direction of such committees as the Board may establish pursuant to
these Bylaws.
Section 2. Number, Term, and Qualification. The number of directors of the
Corporation shall be not more than eight (8) but not less than two
(2), the actual number to serve in each year to be fixed by the
Board of Directors prior to the annual meeting. Each director shall
hold office until his death, resignation, retirement, removal,
disqualification, or his successor is elected and qualifies.
Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
Section 3. Election of Directors. Except as provided in Section 5 of this
Article, the directors shall be elected at each annual meeting of
shareholders; and those persons who receive the highest number of
votes shall be deemed to have been elected. If any shareholder so
demands, election of directors shall be by ballot.
Section 4. Removal. A Director may be removed from office with or without cause
by a vote of shareholders only if the number of votes cast to remove
such director exceeds the number of votes cast against removal.
However, if the shareholders are entitled to vote cumulatively for
the election of directors, an individual director may not be removed
if the number of shares voting against the removal would be
sufficient to elect such director if such shares were voted
cumulatively at an annual election. Notwithstanding the foregoing,
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<PAGE>
the entire Board of Directors may be removed from office by a vote
of the shareholders if the number of votes cast to remove the entire
Board of Directors exceeds the number of votes cast against removal.
If any directors are so removed, new directors may be elected at the
same meeting. A director may not be removed by the shareholders at a
meeting unless the notice of the meeting states that the purpose or
one of the purposes of the meeting is removal of the director;
provided, however, that a director may be removed by the unanimous
written consent of the shareholders.
Section 5. Vacancies. A vacancy occurring in the Board of Directors, including
a vacancy created by an increase in the authorized number of
directors, may be filled by a majority of the remaining directors,
though less than a quorum, or by the sole remaining director. The
shareholders may elect a director at any time to fill a vacancy not
filled by the directors.
ARTICLE IV
Meetings of Directors
---------------------
Section 1. Regular Meetings. A regular meeting of the Board of Directors shall
be held immediately after, and at the same place as, the annual
meeting of shareholders. In addition, the Board of Directors may
provide, by resolution, the time and place, either within or without
the State of North Carolina for the holding of additional regular
meetings.
Section 2. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, the
President, or any two directors. Such meetings may be held either
within or without the State of North Carolina.
Section 3. Notice of Meetings. Regular meetings of the Board of Directors may
be held without notice. The person or persons calling a special
meeting of the Board of Directors shall, at least two days before
the meeting, give notice thereof by any usual means of communication
(including oral notice), provided that such notice need not specify
the purpose for which the meeting is called. Attendance by a
director at, or his participation in, a meeting shall constitute a
waiver of notice of such meeting, unless the director at the
beginning of the meeting (or promptly upon his
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<PAGE>
arrival) objects to holding the meeting or transacting business at
the meeting and does not thereafter vote for or assent to action
taken at the meeting.
Section 4. Presumption of Assent. A director of the Corporation who is present
at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the
action taken unless he objects at the beginning of the meeting (or
promptly upon his arrival) to holding the meeting or transacting
business at the meeting or unless his contrary vote is recorded or
his dissent is otherwise entered in the minutes of the meeting or
unless he shall file his written dissent or abstention with the
person acting as the secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent or abstention shall not apply to
a director who voted in favor of such action.
Section 5. Quorum. A majority of the directors fixed by or pursuant to these
Bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors.
Section 6. Manner of Acting. Except as otherwise provided in the Articles of
Incorporation or in these Bylaws, if a quorum is present when the
vote is taken, the act of a majority of the directors present shall
be the act of the Board of Directors.
Section 7. Telephonic Meetings. Unless otherwise restricted by the Articles of
Incorporation, the Board of Directors may permit any or all of the
directors to participate in a regular or special meeting of the
Board or any committee 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 such
participation in a meeting shall constitute presence in person at
the meeting.
Section 8. Informal Action by Directors. Action taken by a majority of the
directors without a meeting is nevertheless Board action, if written
consent to the action in question is signed by all the directors and
filed with the minutes of the proceedings of the Board, whether done
before or after the action so taken. The action taken
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<PAGE>
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different effective
date.
ARTICLE V
Committees of the Board
-----------------------
Section 1. Creation. The Board of Directors, by resolution adopted by a
majority of the number of directors fixed by or pursuant to these
Bylaws, may designate two or more directors to constitute an
Executive Committee or other committees, each of which, to the
extent authorized by law and provided in the resolution shall have
and may exercise all of the authority of the Board of Directors in
the management of the Corporation, except as set forth in Section 6
of this Article V.
Section 2. Vacancy. Any vacancy occurring in an Executive Committee or other
committee shall be filled by a majority of the number of directors
fixed by or pursuant to these Bylaws at a regular or special meeting
of the Board of Directors.
Section 3. Removal. Any member of an Executive Committee or other committee may
be removed at any time, with or without cause, by a majority of the
number of directors fixed by or pursuant to these Bylaws.
Section 4. Minutes. The Executive Committee and any other committee shall keep
regular minutes of its proceedings and report the same to the Board
when required.
Section 5. Responsibility of Directors. The designation of an Executive
Committee or other committee and the delegation thereto of authority
shall not alone operate to relieve the Board of Directors or any
member thereof, of any responsibility or liability imposed upon it
or him by law.
Section 6. Restrictions on Committees. Neither the Executive Committee nor any
other committee shall have the authority to (a) authorize
distributions; (b) approve or propose to shareholders action that
the North Carolina Business Corporation Act requires be approved by
shareholders; (c) fill vacancies on the Board of Directors or on any
of its committees; (d) amend the Articles of Incorporation; (e)
adopt, amend or repeal Bylaws; (f) approve a plan of merger not
requiring shareholder approval; (g) authorize or approve
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<PAGE>
reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; or (h) authorize or approve
the issuance or sale or contract for sale of shares, or determine
the designation and relative rights, preferences, and limitations of
a class or series of shares, except within limits specifically
prescribed by the Board of Directors.
ARTICLE VI
Officers
--------
Section 1. Number. The Board of Directors may elect from its own number a
Chairman of the Board, and shall elect a President, a Treasurer and
a Secretary (who may or may not be directors); and it may elect or
appoint from time to time such Vice Presidents and other or
additional officers as in its opinion are desirable for the conduct
of the business of the Corporation. The Board of Directors may by
resolution empower any officer or officers of the Corporation to
appoint from time to time such Vice Presidents and other or
additional officers as in the opinion of the officer(s) so empowered
by the Board are desirable for the conduct of the business of the
Corporation. Any two or more offices may be held by the same person,
but no individual may act in more than one capacity where action of
two or more officers is required.
Section 2. Election and Term. The officers of the Corporation shall be elected
or appointed by the Board of Directors or appointed by an officer
empowered by the Board in accordance with Section 1 above. Such
elections by the Board of Directors may be held at any regular or
special meeting of the Board. Each officer shall hold office for a
period of one year or until his death, resignation, retirement,
removal, disqualification, or his successor is elected and
qualifies.
Section 3. Removal. Any officer or agent elected or appointed by the Board of
Directors or appointed by an officer empowered by the Board may be
removed by the Board with or without cause; but such removal shall
be without prejudice to the contract rights, if any, of the persons
so removed.
Section 4. Compensation. The compensation of all officers of the Corporation
shall be fixed by the Board of Directors.
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<PAGE>
Section 5. Chairman of the Board. The Chairman of the Board of Directors, if
elected, or, failing his election, the President, shall preside at
all meetings of the Board of Directors and shall perform such other
duties as may be prescribed from time to time by the Board of
Directors or by the Bylaws.
Section 6. President. The President shall be the principal executive officer of
the Corporation and, subject to the control and direction of the
Board of Directors, shall supervise and control the management of
the Corporation. He shall preside at all meetings of the directors
in the absence of the Chairman of the Board and, in general, he
shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Chairman of the Board
or by the Board of Directors from time to time.
Section 7. Vice Presidents. In the absence or disability of the President or in
the event of his death, inability or refusal to act, the Vice
Presidents, in the order of their length of service as such, unless
otherwise determined by the Board of Directors, shall perform the
duties and exercise the powers of the President. In addition, the
Vice President shall perform such other duties and have such other
powers as the Board of Directors shall prescribe.
Section 8. Secretary and Assistant Secretary. The Secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders
and directors. He shall give all notices required by law and by
these Bylaws. He shall have general charge of the corporate books
and records and of the corporate seal, and he shall affix, or attest
the affixing of, the corporate seal to any lawfully executed
instrument requiring it. He shall have general charge of the stock
transfer books of the Corporation and shall keep, at the registered
or principal office of the Corporation, a record of the shareholders
showing the name and address of each shareholder, and the number and
class of the shares held by each. The Secretary shall keep or cause
to be kept the following records of the Corporation at the principal
office of the Corporation: (i) the Articles of Incorporation with
all amendments thereto currently in effect; (ii) the Bylaws, as
amended; (iii) minutes of all shareholder meetings and all
shareholder written consents, in each case, for
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<PAGE>
the immediately preceding three years; (iv) the names and business
addresses of the current officers; (v) the most recent annual report
delivered to the Secretary of State of North Carolina; (vi) any and
all resolutions adopted by the Board of Directors creating one or
more classes or series of shares, and fixing their relative rights,
preferences, and limitations, if shares issued pursuant to those
resolutions are outstanding; (vii) all written communications to
shareholders generally within the past three years; and (viii) the
financial statements required to be available to the shareholders
for the past three years. The Secretary shall sign such instruments
as may require his signature, and, in general, shall perform all
duties as may be assigned to him from time to time by the Chairman
of the Board, the President or by the Board of Directors. The
Assistant Secretary shall render assistance to the Secretary in all
the responsibilities hereinabove assigned.
Section 9. Treasurer and Assistant Treasurer. The Treasurer shall have custody
of all funds and securities belonging to the Corporation and shall
receive, deposit or disburse the same under the direction of the
Board of Directors. He shall keep full and accurate accounts of the
finances of the Corporation in books especially provided for that
purpose; he shall prepare or cause to be prepared annual financial
statements of the Corporation, including a balance sheet as of the
end of the fiscal year, an income statement for that year and a
statement of cash flows for the year, and otherwise conforming to
the requirements of ss. 55-16-20 of the North Carolina General
Statutes or any successor provision. The financial statements so
prepared shall be kept available for inspection by any shareholder
for a period of three years. The Treasurer shall mail the annual
financial statements, or a written notice of their availability, to
each shareholder within 120 days after the close of each fiscal
year, and shall mail or otherwise deliver a copy of the latest such
statement to any shareholder upon his written request therefor.
The Treasurer shall also prepare and file, or cause to be prepared
and filed, all reports and returns required by Federal, State or
local law and shall generally perform all other duties incident to
his office and such other duties as may be assigned to him from time
to time by the
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<PAGE>
Chairman of the Board, the President or the Board of Directors. The
Assistant Treasurer shall render assistance to the Treasurer in all
the responsibilities hereinabove assigned.
Section 10. Bonds. The Board of Directors may, by resolution, require any or all
officers, agents and employees of the Corporation to give bond to
the Corporation, with sufficient securities, conditioned on faithful
performance of the duties of their respective offices or positions,
and to comply with such other conditions as may from time to time be
required by the Board of Directors.
ARTICLE VII
Contracts, Loans and Deposits
-----------------------------
Section 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and
deliver any instrument on behalf of the Corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation and
no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other orders for the
payment of money issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in
such depositories as the Board of Directors shall direct.
ARTICLE VIII
Stock Certificates and Their Transfer
-------------------------------------
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors
shall determine, to every shareholder for the
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<PAGE>
fully paid shares owned by him. These certificates shall be signed
by the Chairman of the Board, the President or the Vice President
and the Secretary or Treasurer (or Assistant Secretary or Assistant
Treasurer). They shall be consecutively numbered or otherwise
identified; and the name and address of the persons to whom they are
issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the Corporation.
Section 2. Transfer of Shares. Transfer of shares shall be made on the stock
transfer books of the Corporation only upon surrender of the
certificates for the shares sought to be transferred by the record
holder thereof or by his duly authorized agent, transferee or legal
representative. All certificates surrendered for transfer shall be
cancelled before new certificates for the transferred shares shall
be issued.
Section 3. Lost Certificates. The Board of Directors may authorize the issuance
of a new share certificate in place of a certificate claimed to have
been lost or destroyed, upon receipt of an affidavit of such fact
from the person claiming the loss or destruction. When authorizing
such issuance of a new certificate, the Board may require the
claimant to give the Corporation a bond in such sum as it may direct
to indemnify the Corporation against loss from any claim with
respect to the certificate claimed to have been lost or destroyed;
or the Board may, by resolution reciting that the circumstances
justify such action, authorize the issuance of the new certificate
without requiring such a bond.
Section 4. Holder of Record. The Corporation may treat as absolute owner of
shares the persons in whose name the shares stand of record on its
books, just as if that person has full competency, capacity and
authority to exercise all rights of ownership, irrespective of any
knowledge or notice to the contrary or any description indicating a
representative, pledge or other fiduciary relationship or any
reference to any other instrument or to the rights of any other
person appearing upon its record or upon the share certificate,
except that any person furnishing to the Corporation proof of his
appointment as a fiduciary shall be treated as if he were a holder
of record of its shares.
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<PAGE>
ARTICLE IX
General Provisions
------------------
Section 1. Distributions to Shareholders. The Board of Directors may from time
to time authorize, and the Corporation may make, distributions to
its shareholders (including, without limitation, dividends and
distributions involving acquisition of the Corporation's shares) in
the manner and upon the terms and conditions provided by law, and
subject to the provisions of its Articles of Incorporation. If the
Board of Directors does not fix the record date for determining
shareholders entitled to a distribution, the record date shall be
the date the Board of Directors authorizes the distribution;
provided, that no record date is necessary for distributions
involving the acquisition by the Corporation of its own shares from
a specific shareholder or group of shareholders.
Section 2. Seal. The corporate seal of the Corporation shall consist of two
concentric circles between which is the name of the Corporation and
North Carolina and in the center of which is inscribed "Corporate
Seal."
Section 3. Waiver of Notice. Whenever any notice is required to be given to any
shareholder or director under the provisions of the North Carolina
Business Corporation Act or under the provisions of the Articles of
Incorporation or Bylaws of this Corporation, a waiver thereof in
writing signed by the person or persons entitled to such notice and
delivered to the Corporation for inclusion in the minutes or filing
in the corporate records, whether before or after the time stated
therein, shall be equivalent to the giving of such notice.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors.
Section 5. Amendments. Except as otherwise provided herein, in the Articles of
Incorporation or in the North Carolina Business Corporation Act,
these Bylaws (including this Section 5) may be amended or repealed
and new Bylaws may be adopted at any regular or special meeting of
the Board of Directors. The Board of Directors shall have no power
to amend or repeal any Bylaw, or to adopt any new Bylaw, which in
either case has the effect of: (1) requiring the presence of more
votes for a
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<PAGE>
quorum of any voting group of shareholders than is required by law;
(2) requiring more affirmative votes to constitute action on a
particular matter by any voting group of shareholders than are
required by law; (3) changing the size of the Board of Directors
from a fixed number to a variable-range or vice versa, changing the
range of a variable-range size board, or expanding the authority of
the Board of Directors to otherwise increase, decrease or fix the
number of directors; (4) classifying and staggering the election of
directors; or (5) expanding the right(s) of directors to
indemnification from the Corporation beyond the indemnification
authorized or mandated under Sections 55-8-51 and 55-8-52,
respectively, of the North Carolina General Statutes, unless such
expansion meets one or more of the requirements of Section
55-8-31(a)(1), (2) and (3) of the North Carolina General Statutes.
No Bylaws adopted, amended or repealed by the shareholders may be
readopted, amended or repealed by the Board of Directors unless the
Articles of Incorporation or a Bylaw adopted by the shareholders
authorizes the Board of Directors to adopt, amend or repeal that
particular Bylaw or the Bylaws generally.
A Bylaw that fixes a greater quorum or voting requirement for the
Board of Directors may be adopted, amended or repealed only in
accordance with the provisions of ss. 55-10-22 of the North Carolina
General Statutes.
Section 6. Indemnification. Any person who at any time serves or has served as
a director or officer of the Corporation, or in such capacity at the
request of the Corporation for any other foreign or domestic
corporation, partnership, joint venture, trust or other enterprise,
or as trustee or administrator under an employee benefit plan, shall
have a right to be indemnified by the Corporation to the fullest
extent permitted by law against (a) reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the
Corporation, seeking to hold him liable by reason of the fact that
he is or was acting in such capacity, and (b) reasonable payments
made by him in satisfaction of any judgment, money decree,
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<PAGE>
fine, penalty or settlement for which he may have become liable in
any such action, suit or proceeding.
To the extent permitted by law, expenses incurred by a director or
officer in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding, upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified hereunder by the Corporation.
If a person claiming a right to indemnification under this Section
obtains a non-appealable judgment against the Corporation requiring
it to pay substantially all of the amount claimed, the claimant
shall be entitled to recover from the Corporation the reasonable
expense (including reasonable legal fees) of prosecuting the action
against the Corporation to collect the claim.
Notwithstanding the foregoing provisions, the Corporation shall not
indemnify or agree to indemnify any person against liability or
litigation expense he may incur (i) on account of such person's
activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the
Corporation; or (ii) as a result of any improper benefit realized by
such person.
The Board of Directors of the Corporation shall take all such action
as may be necessary and appropriate to authorize the Corporation to
pay the indemnification required by this bylaw, including without
limitation, to the extent needed, making a good faith evaluation of
the manner in which the claimant for indemnity acted and of the
reasonable amount of indemnity due him and giving notice to, and
obtaining approval by, the shareholders of the Corporation.
Any person who at any time after the adoption of this bylaw serves
or has served in any of the aforesaid capacities for or on behalf of
the Corporation shall be deemed to be doing or to have done so in
reliance upon, and as consideration for, the right of
indemnification provided herein. Such right shall inure to the
benefit of the legal representatives of any such person and
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<PAGE>
shall not be exclusive of any other rights to which such person may
be entitled apart from the provision of this bylaw.
Unless otherwise provided herein, the indemnification extended to a
person that has qualified for indemnification under the provisions
of this Section 6 shall not be terminated when the person has ceased
to be a director or officer for all causes of action against the
indemnified party based on acts and events occurring prior to the
termination of the relationship with the Corporation and shall inure
to the benefit of the heirs, executors and administrators of such
person.
The rights granted herein shall not be limited by the provisions
contained in Section 55-8-51 of the North Carolina General Statutes
or any successor to such statute.
* * * * * * * * * * * * * * * * * * * *
THESE BYLAWS READ, APPROVED AND ADOPTED BY THE BOARD OF DIRECTORS OF THE
CORPORATION AS OF THE 14TH DAY OF DECEMBER, 1992.
/s/Donald G. Walser
-------------------
Donald G. Walser, Secretary
EGS/596
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Parker, Poe, Thompson, Bernstein, Gage & Preston
2600 Charlotte Plaza
Charlotte, N.C. 28244
CORP BOOK 57 PAGE 387
[STATE INSIGNIA]
STATE OF NORTH CAROLINA
Department of The Secretary of State
To all whom these presents shall come, Greeting:
I, Rufus L. Edmisten, Secretary of State of the State of North Carolina,
do hereby certify the following and hereto attached (2 sheets) to be a true copy
of
ARTICLES OF INCORPORATION CORP 7.00
OF TOTAL 7.00
NORTHSTAR SALES CORPORATION CHECK 7.00
CHANGE 0.00
01/10/90 04 10:57 0001 0033
and the probates thereon, the original of which was filed in this office on the
22nd day of December 1989, after having been found to conform to law.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal.
Done in Office, at Raleigh, this 22nd day of December in the year of our
Lord 1989.
[SEAL] /s/ Rufus L. Edmisten
Secretary of State
RECORDING FEE 7.00
<PAGE>
DOCUMENT #469108
DATE 12/22/89 TIME 12:2
FILED
RUFUS L. EDMISTEN
SECRETARY OF STATE
NORTH CAROLINA
CORP BOOK 57 PAGE 388
ARTICLES OF INCORPORATION
OF
NORTHSTAR SALES CORPORATION
The undersigned natural person of the age of eighteen (18) years or more,
does hereby make these Articles of Incorporation for the purpose of forming a
business corporation under the North Carolina Business Corporation Act, Chapter
55 of the North Carolina General Statutes, and any amendments thereto, and to
that end does hereby set forth the following:
ARTICLE I
The name of the corporation is Northstar Sales Corporation.
ARTICLE II
The duration of the corporation shall be perpetual.
ARTICLE III
The purpose for which the corporation is organized is to engage in any
activity which is lawful under the North Carolina Business Corporation Act and
any amendments thereto.
ARTICLE IV
The aggregate number of shares which the corporation shall have authority
to issue is one hundred thousand (100,000) shares of common stock with a par
value of One Dollar ($1.00) per share.
ARTICLE V
The minimum amount of consideration to be received by the corporation for its
shares before it shall commence business is Five Hundred Dollars ($500.00) in
cash or other property.
ARTICLE VI
The address of the initial registered office of the corporation is P.O.
Box 609, Gastonia, North Carolina. The name of the initial registered agent at
such address is Don Walser. (Street address: 6048 S. York Road, Gastonia, NC,
Gaston County)
ARTICLE VII
The number of directors constituting the initial Board of Directors shall
be three (3); the names and addresses of those persons are:
<PAGE>
CORP BOOK 57 PAGE 389
NAME ADDRESS
---- -------
Marshall A. Rauch P. 0. Box 609
Gastonia, NC 28053
Don Walser P. 0. Box 609
Gastonia, NC 28053
Marc Rauch P. 0. Box 609
Gastonia, NC 28053
(All of the above at 6048 S. York Road, Gastonia, NC 28052)
ARTICLE VIII
The name and address of the incorporator are Gerald T. Moran, Jr., 2600
Charlotte Plaza, Charlotte, North Carolina 28244.
ARTICLE IX
To the fullest extent permitted by the North Carolina Business Corporation
Act as it exists or may hereafter be amended, a director of the corporation
shall not be liable to the corporation or any of its shareholders for monetary
damages for breach of duty as a director.
IN WITNESS WHEREOF, the undersigned incorporator has hereunto set his hand
and seal, this 20th day of December, 1989.
/s/ Gerald T. Moran, Jr. (SEAL)
-----------------------------
Gerald T. Moran, Jr.
STATE OF NORTH CAROLINA
COUNTY OF LINCOLN
I, Susan K. McDaniel, a Notary Public in and for said County and State, do
hereby certify that Gerald T. Moran, Jr. personally appeared before me this day
and acknowledged the due execution of the foregoing instrument for the purposes
therein expressed.
WITNESS my hand and Notarial Seal, this the 20th day of December, 1989.
/s/ Susan K. McDaniel
-------------------------------
Notary Public
My commission expires: 10/18/91
Drawn by, return to:
Parker, Poe, et al.
2600 Charlotte Plaza
Charlotte, NC 28244
Attn: Drusilla G. Scott,
Legal Assistant
Box #10
TIME 10:57 AM
BOOK 57
PAGE 387
FILED 1-10-90
BYLAWS
OF
NORTHSTAR SALES CORPORATION
ARTICLE I
Offices
-------
Section 1. Principal Office. The principal office of the Corporation shall be
located in Gastonia, Gaston County, North Carolina.
Section 2. Registered Office. The registered office of the Corporation shall be
located in Gastonia, Gaston County, North Carolina.
Section 3. Other Offices. The Corporation may have any number of additional
offices, at such other places as the Board of Directors may from
time to time determine, or as the affairs of the Corporation may
require.
ARTICLE II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings. All meetings of shareholders shall be held at the
principal office of the Corporation, or at such other place, either
within or without the State of North Carolina as shall be designated
in the notice of the meeting or agreed upon by a majority of the
shareholders entitled to vote thereat.
Section 2. Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held at Gastonia, North Carolina on the fourth
Monday in April of each year if not a legal holiday, but if a legal
holiday, on the next day following not a legal holiday, for the
purpose of electing directors of the Corporation and for the
transaction of such other business as may be properly brought before
the meeting.
Section 3. Substitute Annual Meeting. If the annual meeting shall not be held
on the day designated by these Bylaws, a substitute annual meeting
may be called in accordance with the provisions of Section 4 of this
Article. A meeting so called shall be designated and treated for all
purposes as the annual meeting.
<PAGE>
Section 4. Special Meetings. Special meetings of the shareholders may be called
at any time by the Chairman of the Board, the President, the
Secretary, or the Board of Directors of the Corporation, or by any
shareholder pursuant to written request of the holders of not less
than one-tenth of all stock entitled to vote. Special meetings shall
be held at the principal office of the Corporation, or at such other
place as shall be designated in the notice of meeting.
Section 5. Notice of Meetings. Written or printed notice stating the time and
place of the meeting shall be delivered not less than ten nor more
than fifty days before the date thereof, either personally or by
mail, by or at the direction of the Chairman of the Board, the
President, the Secretary or other person calling the meeting, to
each shareholder of record entitled to vote at such meeting;
provided, that such notice must be given not less than twenty days
before the date of any meeting at which a merger or consolidation is
to be considered.
In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted
thereat unless it is a matter, other than the election of directors,
on which the vote of shareholders is expressly required by the
provisions of the North Carolina Business Corporation Act. In the
case of a special meeting, the notice of meeting shall specifically
state the purpose or purposes for which the meeting is called.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall be given as in the case of an original
meeting.
When a meeting is adjourned for less than thirty days in any one
adjournment, it is not necessary to give any notice of the adjourned
meeting other than by announcement at the meeting at which the
adjournment is taken.
Section 6. Voting Lists. At least ten days before each meeting of shareholders,
the Secretary of the Corporation shall prepare an alphabetical list
of the shareholders entitled to vote at any such meeting, with the
address of and the number of shares held by each, which list shall
be kept on file at the registered office of the Corporation for a
period of ten days prior to such meeting,
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and shall be subject to inspection by any shareholder at any time
during the usual business hours. This list shall also be produced
and kept open at the time and place of the meeting and shall be
subject to inspection by any shareholder during the whole time of
the meeting.
Section 7. Quorum. The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at
meetings of shareholders, except that at a substitute annual meeting
of shareholders the number of shares there represented either in
person or by proxy, even though less than a majority, still
constitutes a quorum for the purpose of such a meeting. If there is
no quorum at the opening of a meeting of shareholders, such meeting
may be adjourned from time to time by the vote of a majority of the
shares voting on the motion to adjourn; and, at any adjourned
meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting. The
shareholders at a meeting at which a quorum is present may continue
to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum.
Section 8. Proxies. Shares may be voted either in person or by one or more
agents authorized by a written proxy executed by the shareholder or
by his duly authorized attorney-in-fact. A proxy is not valid after
the expiration of eleven months from the date of its execution,
unless the person executing it specifies therein the length of time
for which it is to continue in force, or limits its use to a
particular meeting, but no proxy shall be valid after ten years from
the date of its execution.
Section 9. Voting of Shares. Each outstanding share having voting rights shall
be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders. Except in the election of directors, the
vote of a majority of the shares voted on any matter at a meeting of
shareholders at which a quorum is present shall be the act of the
shareholders on that matter, unless the vote of a greater number is
required by law or by the Charter or Bylaws of this Corporation.
Voting on all matters, except the election of directors, shall be by
voice vote or by a show of hands, unless the holders of one-tenth of
the shares represented at the meeting shall, prior to the voting on
any matter, demand a ballot vote on that particular matter.
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Section 10. Informal Action by Shareholders. Any action which may be taken at a
meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be
signed by all of the persons who would be entitled to vote upon any
such action at a meeting, and filed with the Secretary of the
Corporation to be kept in the corporate minute book.
ARTICLE III
Directors
---------
Section 1. General Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors or by such Executive Committees as
the Board may establish pursuant to these Bylaws.
Section 2. Number, Term, and Qualification. The number of directors of the
Corporation shall be not more than three (3) but not less than one
(1), the actual number to serve in each year to be fixed by the
shareholders at the annual meeting; provided, however, that the
number of directors shall not be less than three, unless there shall
be less than three shareholders, in which event the number of
directors shall not be less than the number of shareholders. Each
director shall hold office until his death, resignation, retirement,
removal, disqualification, or his successor is elected and
qualifies. Directors need not be residents of the State of North
Carolina or shareholders of the Corporation.
Section 3. Election of Directors. Except as provided in Section 6 of this
Article, the directors shall be elected at the annual meeting of
shareholders; and those persons who receive the highest number of
votes shall be deemed to have been elected. If any shareholder so
demands, election of directors shall be by ballot.
Section 4. Cumulative Voting. Every shareholder entitled to vote at an election
of directors shall have the right to vote the number of shares
standing of record in his name for as many persons as there are
directors to be elected and for whose election he has a right to
vote, or to cumulate his vote by giving one candidate as many votes
as the number of such directors multiplied by the number of his
shares shall equal, or by distributing such votes on the same
principle among any number of such candidates. This right
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<PAGE>
of cumulative voting shall not be exercised unless some shareholder
or proxyholder announces in open meeting, before the voting for the
directors starts, his intention to so vote cumulatively; and if such
announcement is made, the Chairman shall declare that all shares
entitled to vote have the right to vote cumulatively and shall
thereupon grant a recess of not less than one or more than four
hours, as he shall determine, or of such other period of time as is
unanimously then agreed upon.
Section 5. Removal. Directors may be removed from office with or without cause
by a vote of shareholders holding a majority of the shares entitled
to vote at an election of directors. However, unless the entire
Board is removed, an individual director may not be removed if the
number of shares voting against the removal would be sufficient to
elect a director if such shares were voted cumulatively at an annual
election. If any directors are so removed, new directors may be
elected at the same meeting.
Section 6. Vacancies. A vacancy occurring in the Board of Directors may be
filled by a majority of the remaining directors, though less than a
quorum, or by the sole remaining director; but a vacancy created by
an increase in the authorized number of directors shall be filled
only by election at an annual meeting or at a special meeting of
shareholders called for that purpose. The shareholders may elect a
director at any time to fill a vacancy not filled by the directors.
Section 7. Chairman. The Chairman of the Board of the Corporation shall act as
Chairman of all meetings of the Board of Directors.
ARTICLE IV
Meetings of Directors
---------------------
Section 1. Regular Meetings. A regular meeting of the Board of Directors shall
be held immediately after, and at the same place as, the annual
meeting of shareholders. In addition, the Board of Directors may
provide, by resolution, the time and place, either within or without
the State of North Carolina, for the holding of additional regular
meetings.
Section 2. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, the
President, or
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any two directors. Such meetings may be held either within or
without the State of North Carolina.
Section 3. Notice of Meetings. Regular meetings of the Board of Directors may
be held without notice. The person or persons calling a special
meeting of the Board of Directors shall, at least two days before
the meeting, give notice thereof by any usual means of
communication. Such notice may be waived in writing and need not
specify the purpose for which the meeting is called. Attendance by a
director at a meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the
meeting was not lawfully called.
Section 4. Presumption of Assent. A director of the Corporation who is present
at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the
action taken unless his contrary vote is recorded or his dissent is
otherwise entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor of
such action.
Section 5. Quorum. A majority of the directors fixed by or pursuant to these
Bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors.
Section 6. Manner of Acting. Except as otherwise provided in these Bylaws, the
act 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. The
vote of a majority of the directors then holding office shall be
required to adopt a resolution dissolving the Corporation without
action by the shareholders.
Section 7. Informal Action by Directors. Action taken by a majority of the
directors without a meeting is nevertheless Board action, if written
consent to the action in question is signed by all the
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<PAGE>
directors and filed with the minutes of the proceedings of the
Board, whether done before or after the action so taken.
ARTICLE V
Executive Committee
-------------------
Section 1. Creation. The Board of Directors, by resolution adopted by a
majority of the number of directors fixed by these Bylaws, may
designate two or more directors to constitute an Executive
Committee, which committee shall have and may exercise all of the
authority of the Board of Directors in the management of the
Corporation, except as set forth in Section 6 of this Article V.
Section 2. Vacancy. Any vacancy occurring in an Executive Committee shall be
filled by a majority of the number of directors fixed by these
Bylaws at a regular or special meeting of the Board of Directors.
Section 3. Removal. Any member of an Executive Committee may be removed at any
time, with or without cause, by a majority of the number of
directors fixed by these Bylaws.
Section 4. Minutes. The Executive Committee shall keep regular minutes of its
proceedings and report the same to the Board when required.
Section 5. Responsibility of Directors. The designation of an Executive
Committee and the delegation thereto of authority shall not operate
to relieve the Board of Directors or any member thereof, of any
responsibility or liability imposed upon it or him by law. If action
taken by an Executive Committee is not thereafter formally
considered by the Board, a director may dissent from such action by
filing his written objection with the Secretary with reasonable
promptness after learning of such action.
Section 6. Restrictions on Executive Committee. The Executive Committee shall
not have authority to act on (a) dissolution, merger or
consolidation, or disposition of substantially all corporate
property; (b) the designation of committees or filling vacancies on
the Board of Directors for serving on the Board or on a committee of
the Board; (c) fixing compensation of the directors for serving on
the Board or any such committee; (d) amending or repealing Bylaws or
adopting new Bylaws; (e) amending or repealing any resolution
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<PAGE>
of the Board which, by its terms, shall not be amendable or
repealable; (f) any additional restrictions imposed by the Board of
Directors of the Corporation in establishing such Executive
Committee; or (g) any restrictions imposed by the North Carolina
General Statutes, now or hereafter adopted.
ARTICLE VI
Officers
--------
Section 1. Number. The Board of Directors may elect from its own number a
Chairman of the Board, and shall elect a President and such Vice
Presidents (who may or may not be directors) as in the opinion of
the Board the business of the Corporation requires, a Treasurer and
a Secretary; and it shall elect or appoint from time to time such
other or additional officers as in its opinion are desirable for the
conduct of the business of the Corporation. Any two or more offices
may be held by the same person, except the offices of Chairman of
the Board and Secretary, and President and Secretary.
Section 2. Election and Term. The officers of the Corporation shall be elected
by the Board of Directors. Such elections may be held at any regular
or special meeting of the Board. Each officer shall hold office for
a period of one year or until his death, resignation, retirement,
removal, disqualification, or his successor is elected and
qualifies.
Section 3. Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board with or without cause; but
such removal shall be without prejudice to the contract rights, if
any, of the persons so removed.
Section 4. Compensation. The compensation of all officers of the Corporation
shall be fixed by the Board of Directors.
Section 5. Chairman of the Board. The Chairman of the Board of Directors, if
elected, or, failing his election, the President, shall preside at
all meetings of the Board of Directors and shall perform such other
duties as may be prescribed from time to time by the Board of
Directors or by the Bylaws.
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<PAGE>
Section 6. President. The President shall be the principal executive officer of
the Corporation and, subject to the control of the Board of
Directors, shall supervise and control the management of the
Corporation. He shall preside at all meetings of the directors in
the absence of the Chairman of the Board and, in general, he shall
perform all duties incident to the office of President and such
other duties as may be prescribed by the Chairman of the Board or by
the Board of Directors from time to time.
Section 7. Vice President. The Vice President shall, in the absence or
disability of the President, perform the duties and exercise the
powers of that office. In addition, he shall perform such other
duties and have such other powers as the Board of Directors shall
prescribe.
Section 8. Secretary and Assistant Secretary. The Secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders
and directors. He shall give all notices required by law and by
these Bylaws. He shall have general charge of the corporate books
and records and of the corporate seal, and he shall affix, or attest
the affixing of, the corporate seal to any lawfully executed
instrument requiring it. He shall have general charge of the stock
transfer books of the Corporation and shall keep, at the registered
or principal office of the Corporation, a record of the shareholders
showing the name and address of each shareholder, and the number and
class of the shares held by each. He shall sign such instruments as
may require his signature, and, in general, shall perform all duties
as may be assigned to him from time to time by the Chairman of the
Board, the President or by the Board of Directors. The Assistant
Secretary shall render assistance to the Secretary in all the
responsibilities hereinabove assigned.
Section 9. Treasurer and Assistant Treasurer. The Treasurer shall have custody
of all funds and securities belonging to the Corporation and shall
receive, deposit or disburse the same under the direction of the
Board of Directors. He shall keep full and accurate accounts of the
finances of the Corporation in books especially provided for that
purpose; he shall cause a true statement of its assets and
liabilities as of the close of each fiscal year, and of the results
of its operations and of changes in surplus for such fiscal year,
all in reasonable detail, including particulars
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as to convertible securities then outstanding, to be made and filed
at the registered or principal office of the Corporation within four
months after the end of such fiscal year. The statement so filed
shall be kept available for inspection by any shareholder for a
period of ten years and the Treasurer shall mail or otherwise
deliver a copy of the latest such statement to any shareholder upon
his written request therefor.
The Treasurer shall also prepare and file all reports and returns
required by Federal, State or local law and shall generally perform
all other duties incident to his office and such other duties as may
be assigned to him from time to time by the Chairman of the Board,
the President or the Board of Directors. The Assistant Treasurer
shall render assistance to the Treasurer in all the responsibilities
hereinabove assigned.
Section 10. Bonds. The Board of Directors may, by resolution, require any or all
officers, agents and employees of the Corporation to give bond to
the Corporation, with sufficient securities, conditioned on faithful
performance of the duties of their respective offices or positions,
and to comply with such other conditions as may from time to time be
required by the Board of Directors.
ARTICLE VII
Contracts, Loans and Deposits
-----------------------------
Section 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and
deliver any instrument on behalf of the Corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation and
no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other orders for the
payment of money issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
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<PAGE>
Section 4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in
such depositories as the Board of Directors shall direct.
ARTICLE VIII
Stock Certificates and Their Transfer
-------------------------------------
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors
shall determine, to every shareholder for the fully paid shares
owned by him. These certificates shall be signed by the Chairman of
the Board, the President or the Vice President and the Secretary or
Treasurer (or Assistant Secretary or Assistant Treasurer) . They
shall be consecutively numbered or otherwise identified; and the
name and address of the persons to whom they are issued, with the
number of shares and date of issue, shall be entered on the stock
transfer books of the Corporation.
Section 2. Transfer of Shares. Transfer of shares shall be made on the stock
transfer books of the Corporation only upon surrender of the
certificates for the shares sought to be transferred by the record
holder thereof or by his duly authorized agent, transferee or legal
representative. All certificates surrendered for transfer shall be
cancelled before new certificates for the transferred shares shall
be issued.
Section 3. Closing Transfer Books and Fixing Record Date. For the purpose of
determining 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 in order to make a determination
of shareholders or for any other proper purpose, the Board of
Directors may provide that the stock transfer books shall be closed
for a period stated but not to exceed, in any case, fifty days. If
the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a
meeting of the shareholders, such books shall be closed for at least
ten days immediately preceding such meeting.
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<PAGE>
In lieu of closing the stock transfer books, the Board of Directors
may fix in advance a date as the record date for any such
determination of shareholders, such record date in any case to be
not more than fifty days, and in case of a meeting of shareholders,
not less than ten days immediately preceding the date on which the
particular action requiring such determination of shareholders is to
be taken.
If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or
to vote at a meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board
of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders.
Section 4. Lost Certificates. The Board of Directors may authorize the issuance
of a new share certificate in place of a certificate claimed to have
been lost or destroyed, upon receipt of an affidavit of such fact
from the person claiming the loss or destruction. When authorizing
such issuance of a new certificate, the Board may require the
claimant to give the Corporation a bond in such sum as it may direct
to indemnify the Corporation against loss from any claim with
respect to the certificate claimed to have been lost or destroyed;
or the Board may, by resolution reciting that the circumstances
justify such action, authorize the issuance of the new certificate
without requiring such a bond.
Section 5. Holder of Record. The Corporation may treat as absolute owner of
shares the persons in whose name the shares stand of record on its
books, just as if that person has full competency, capacity and
authority to exercise all rights of ownership, irrespective of any
knowledge or notice to the contrary or any description indicating a
representative, pledge or other fiduciary relationship or any
reference to any other instrument or to the rights of any other
person appearing upon its record or upon the share certificate,
except that any person furnishing to the Corporation proof of his
appointment as a fiduciary shall be treated as if he were a holder
of record of its shares.
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<PAGE>
Section 6. Treasury Shares. Treasury shares of the Corporation shall consist of
such shares as have been issued and thereafter acquired but not
cancelled by the Corporation. Treasury shares shall not carry voting
or dividend rights.
ARTICLE IX
General Provisions
------------------
Section 1. Dividends. The Board of Directors may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law, and
subject to the provisions of its Charter.
Section 2. Seal. The corporate seal of the Corporation shall consist of two
concentric circles between which is the name of the Corporation and
North Carolina and in the center of which is inscribed "Corporate
Seal."
Section 3. Waiver of Notice. Whenever any notice is required to be given to any
shareholder or director under the provisions of the North Carolina
Business Corporation Act or under the provisions of the Charter or
Bylaws of this Corporation, a waiver thereof in writing signed by
the person or persons entitled to such notice, whether before or
after the time stated therein, shall be equivalent to the giving of
such notice.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors.
Section 5. Amendments. Except as otherwise provided herein, these Bylaws may be
amended or repealed and new Bylaws may be adopted by the affirmative
vote of a majority of the directors then holding office at any
regular or special meeting of the Board of Directors. The Board of
Directors shall have no power to adopt a Bylaw: (1) requiring more
than a majority of the voting shares for a quorum at a meeting of
shareholders or more than a majority of the votes cast to constitute
action by the shareholders, except where higher percentages are
required by law; (2) providing for the management of the Corporation
otherwise than by the Board of Directors or its Executive Committee;
(3) increasing or decreasing the number of directors; (4)
classifying and staggering the election of directors.
No Bylaws adopted or amended by the shareholders shall be altered or
repealed by the Board of Directors.
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<PAGE>
Section 6. Indemnification. Any person who at any time serves or has served as
a director, officer, employee or agent of the Corporation, or in
such capacity at the request of the Corporation for any other
corporation, partnership, joint venture, trust or other enterprise,
or as trustee or administrator under an employee benefit plan, shall
have a right to be indemnified by the Corporation to the fullest
extent permitted by law against (a) reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the
Corporation, seeking to hold him liable by reason of the fact that
he is or was acting in such capacity, and (b) reasonable payments
made by him in satisfaction of any judgment, money decree, fine,
penalty or settlement for which he may have become liable in any
such action, suit or proceeding.
To the extent permitted by law, expenses incurred by a director or
officer in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding, upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified hereunder by the Corporation.
Notwithstanding the foregoing provisions, the Corporation shall not
indemnify or agree to indemnify any person against liability or
litigation expense he may incur on account of his activities which
were at the time taken known or believed by him to be clearly in
conflict with the best interests of the Corporation.
The Board of Directors of the Corporation shall take all such action
as may be necessary and appropriate to authorize the Corporation to
pay the indemnification required by this bylaw, including without
limitation, to the extent needed, making a good faith evaluation of
the manner in which the claimant for indemnity acted and of the
reasonable amount of indemnity due him and giving notice to, and
obtaining approval by, the shareholders of the Corporation.
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<PAGE>
Any person who at any time after the adoption of this bylaw serves
or has served in any of the aforesaid capacities for or on behalf of
the Corporation shall be deemed to be doing or to have done so in
reliance upon, and as consideration for, the right of
indemnification provided herein. Such right shall inure to the
benefit of the legal representatives of any such person and shall
not be exclusive of any other rights to which such person may be
entitled apart from the provision of this bylaw.
* * * * * * * * * * * * * * * * * * * *
THESE BYLAWS READ, APPROVED AND ADOPTED BY THE BOARD OF DIRECTORS OF NORTHSTAR
SALES CORPORATION AS OF THE 27th DAY OF DECEMBER, 1989.
/s/ Donald G. Walser
--------------------------------
JWP2/672
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The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASUBURTON PLACE, BOSTON. MASS. 02108
ARTICLES OF ORGANIZATION
(Under G.L Ch. 156B)
Incorporators
NAME POST OFFICE ADDRESS
Include given name in full in case of natural persons: in case of a corporation,
give state of incorporation.
Leonard Florence 99 Lyman Road
Brookline, Mass. 02167
The above-named incorporation(s) does hereby associate with the intention
of forming a corporation under the provisions of General Laws, Chapter 156B and
hereby state(s):
1. The name by which the corporation shall be known is:
Leonard Florence Associates, Inc.
2. The purpose for which the corporation is formed is as follows:
To directly or indirectly, for its own account or for others, import,
market, manufacture and otherwise deal with silverplate and other products
within and without the Commonwealth of Massachusetts, and to do all other
things permitted by the Business Corporation Law of the Commonwealth of
Massachusetts, as now or hereafter amended.
Note If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one article may be continued on a single sheet so long as each
article requiring each such addition is clearly indicated.
<PAGE>
3 The total number of shares and the par value, if any, of each class of
stock within the corporation is authorized as follows:
---------------------------------------------------------------------------
WITHOUT PAR VALUE WITH PAR VALUE
CLASS OF STOCK ------------------------------------------------------------
NUMBER OF SHARES NUMBER OF SHARES PAR AMOUNT
VALUE
---------------------------------------------------------------------------
Preferred None None $
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Common 12,500 None
---------------------------------------------------------------------------
*4. If more that one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting powers,
qualifications, special or relative rights or privileges as to each class
thereof and any series now established:
Not Applicable
*5. The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are as follows:
None
*6 Other lawful provisions, if any, for the conduct and regulation of business
and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
See Rider 6
*If there are no provisions state "None".
<PAGE>
6 RIDER
The following provisions are hereby established for the conduct and
regulation of the business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining or regulating the powers of the
corporation, or of its directors or stockholders:
The corporation may be a partner or joint venturer in any business
enterprise which the corporation has power to conduct by itself.
The corporation may lease, buy and sell such equipment and real estate as
the directors and/or officers may deem necessary or advisable.
Meetings of stockholders may be held anywhere in the United States as
shall be determined from time to time by the directors or as shall be stated in
the call of the meeting.
The by-laws may provide that the directors may make, amend or repeal the
by-laws, in whole or in part, except with respect to any provision thereof
which by law, by the articles of organization or by the by-laws requires action
by the stockholders.
Except as specifically authorized by statute, no stockholder shall have any
right to examine any property or any books, accounts or other writings of the
corporation if there is reasonable ground for belief that such examination will
for any reason be adverse to the interests of the corporation, and a vote of the
directors refusing permission to make such examination and setting forth that in
the opinion of the directors such examination would be adverse to the interests
of the corporation shall be prima facie evidence that such examination would be
adverse to the interests of the corporation. Every such examination shall be
subject to such reasonable regulations as the directors may establish in regard
thereto.
The corporation may enter into contracts and otherwise transact business as
vendor, purchaser or otherwise with its directors, officers and stockholders and
with corporations, joint stock companies, trusts, firms and associations in
which they are or may be or become interested as directors, officers,
shareholders, members, trustees, beneficiaries or otherwise as freely as though
such adverse interest did not exist even though the vote, action or presence of
such director, officer or stockholder may be necessary to obligate the
corporation upon such contract or transaction; and no such contract or
transaction shall be avoided and no such director, officer or stockholder shall
be
<PAGE>
held liable to account to the corporation or to any creditor or stockholder of
the corporation for any profit or benefit realized by him through any such
contract or transaction by reason of such adverse interest nor by reason of any
fiduciary relationship of such director, officer or stockholder to the
corporation arising out of such office or stock ownership; provided (in the case
of directors and officers but not in the case of any stockholder who is not a
director or officer of the corporation) the nature of the interest of such
director or officer, though not necessarily the details or extent thereof, be
known by or disclosed to the directors. Ownership of beneficial interest in a
minority of the stock or securities of another corporation, joint stock company,
trust, firm or association shall not be deemed to constitute an interest adverse
to this corporation in such other corporation, joint stock company, trust, firm
or association and need not be disclosed. A general notice that a director or
officer of the corporation is interested in any corporation, joint stock
company, trust, firm or association shall be sufficient disclosure as to such
director or officer with respect to all contracts and transactions with that
Corporation, joint stock company, trust, firm or association. In any event, the
authorizing or ratifying vote of a majority of the capital stock of the
corporation outstanding and entitled to vote passed at a meeting duly called and
held for the purpose shall validate any such contract or transaction as against
all stockholders of the corporation, whether of record or not at the time of
such vote, and as against all creditors and other claimants, under the
corporation, and no contract or transaction shall be avoided by reason of any
provision of this paragraph which would be valid but for these provisions.
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<PAGE>
7. By-laws of the Corporation have been duly adopted and the initial
directors, president, treasurer and clerk, whose names are set out below,
have been duly elected.
8. The effective date of organization of the corporation shall be the date of
filing with the Secretary of the Commonwealth or if a later date is
desired, specify date. (not more than 30 days after date of filing.)
9. The following information shall not for any purpose be treated as a
permanent part of the Articles of Organization of the corporation:
a. The post office address of the initial principal office of the
corporation of Massachusetts is
99 Lyman Road, Brookline, Massachusetts 02167
b. The name, residence and post office address of each of the initial
directors and following officers of the corporation are as follows:
NAME RESIDENCE POST OFFICE ADDRESS
President: Leonard Florence 99 Lyman Road 99 Lyman Road
Brookline, MA 02167 Brookline, MA 02167
Treasurer: Leonard Florence As Above As Above
Clerk: Leonard Florence As Above As Above
Directors: Leonard Florence As Above As Above
c. The date initially adopted on which the corporation's fiscal year ends
is:
December 31
d. The date initially fixed in the by-laws for the annual meeting of
stockholders of the corporation is:
Second Wednesday in February
e. The name and business address of the resident agent, if any, of the
corporation is:
Not Applicable
IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S)
sign(s) these Articles of Organization this 4th day of February 1986.
/s/ Leonard Florence
- -------------------------
Leonard Florence
The signature of each incorporator which is not a natural person must be an
individual who shall show the capacity in which he acts and by signing shall
represent under the penalties of perjury that he is duly authorized on its
behalf to sign these Articles of Organization.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
GENERAL LAWS, CHAPTER 156B, SECTION 12
=========================================
I hereby certify that, upon an examination of the within-written articles
of organization, duly submitted to me, it appears that the provisions of the
General Laws relative to the organization of corporations have been complied
with, and I hereby approve said articles; and the filing fee in the amount of
$150 having been paid, said articles are deemed to have been filed with me this
7th day of February l986.
Effective date
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
PHOTO COPY OF ARTICLES OF ORGANIZATION TO BE SENT
TO BE FILLED IN BY CORPORATION
TO: Martha J. McMahon
McCormack & Putzinger
265 Franklin Street, Suite 660
Boston, MA 02110
Telephone (617) 439-4100
FILING FEE: 1/20 of 1% of the total amount of the authorized capital stock with
par value, and one cent a share for all authorized shares without par value, but
not less than $150 General Laws, Chapter 156B. Shares of stock with a par value
less than one dollar shall be deemed to have par value of one dollar per share.
Copy Mailed
BY-LAWS
of
LEONARD FLORENCE ASSOCIATES, INC.
ARTICLE I
---------
Articles of Organization
------------------------
The name and purposes of the corporation shall be as set forth in the
Articles of Organization. These By-Laws, the powers of the corporation and its
Directors and stockholders, and all matters concerning the conduct and
regulation of the business of the corporation, shall be subject to such
provisions in regard thereto, if any, as are set forth in the Articles of
Organization. All references in these By-Laws to the Articles of Organization
shall be construed to mean the Articles of Organization of the corporation as
from time to time amended or restated.
ARTICLE II
----------
Fiscal Year
-----------
Except as from time to time otherwise determined by the Directors, the
fiscal year of the corporation shall in each year end on
ARTICLE III
-----------
Meetings of Stockholders
------------------------
Section 1. Annual Meetings.
The annual meeting of stockholders shall be held on
<PAGE>
the fifteenth day of June in each year, provided, however that if that be a
legal holiday in the place where the meeting is to be held, on the next
succeeding full business day, at ten o'clock A.M. unless a different hour is
fixed by the Board of Directors or the President. The purposes for which the
annual meeting is to be held, in addition to those prescribed by law, by the
Articles of Organization or these By-Laws, may be specified by the Board of
Directors or the President. If no annual meeting has been held on the date fixed
above, a special meeting in lieu thereof may be held and such special meeting
shall have for the purposes of these By-Laws or otherwise all the force and
effect of an annual meeting.
Section 2. Special Meetings.
A special meeting of the stockholders may be called at any time by the
President, or by a majority of the Directors acting by vote or by written
instrument or instruments signed by them. A special meeting of the stockholders
shall be called by the Clerk, or in case of the death, absence, incapacity or
refusal of the Clerk, by any other officer, upon written application of one or
more stockholders who hold at least one-tenth part in interest of the stock
entitled to vote at the meeting. Such call shall state the time, place, and
purposes of the meeting.
Section 3. Place of Meetings.
All meetings of the stockholders shall be held at the principal office of
the corporation in Massachusetts, unless a different place within Massachusetts
or, if permitted by the Articles of Organization, elsewhere within the United
States is designated by the President, or by a majority of the Directors acting
by vote or by written instrument or instruments signed by them. Any adjourned
session of any meeting of the stockholders shall be held at such place within
Massachusetts or, if permitted by the Articles of Organization, elsewhere
within the United States as is designated in the vote of adjournment.
Section 4. Notice of Meetings.
A written notice of the place, date and hour of all meetings of
stockholders stating the purposes of the meeting shall be given at least seven
days before the meeting to each stockholder entitled to vote thereat and to each
stock-
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<PAGE>
holder who is otherwise entitled by law or by the Articles of Organization to
such notice, by leaving such notice with him or at his residence or usual place
of business, or by mailing it, postage prepaid, and addressed to such
stockholder at his address as it appears in the records of the corporation. Such
notice shall be given by the Clerk, or in case of the death, absence, incapacity
or refusal of the Clerk, by any other officer or by a person designated either
by the Clerk, by the person or persons calling the meeting or by the Board of
Directors. Whenever notice of a meeting is required to be given a stockholder
under any provision of law, of the Articles of Organization, or of these
By-Laws, a written waiver thereof, executed before or after the meeting by such
stockholder or his attorney thereunto authorized, and filed with the records of
the meeting, shall be deemed equivalent to such notice.
Section 5. Quorum.
At any meeting of the stockholders, a quorum shall consist of a majority in
interest of all stock issued and outstanding and entitled to vote at the
meeting; except that if two or more classes or series of stock are entitled to
vote on any matter as separate classes or series, then in the case of each such
class or series a quorum for that matter shall consist of a majority in interest
of all stock of that class or series issued and outstanding; and except when a
larger quorum is required by law, by the Articles of Organization or by these
By-Laws. Stock owned directly or indirectly by the corporation, if any, shall
not be deemed outstanding for this purpose. Any meeting may be adjourned from
time to time by a majority of the votes properly cast upon the question, whether
or not a quorum is present, and the meeting may be held as adjourned without
further notice.
Section 6. Action by Vote.
When a quorum is present at any meeting, a plurality of the votes properly
cast for election to any office shall elect to such office, and a majority of
the vote properly cast upon any question other than an election to an office
shall decide the question, except when a larger vote is required by law, by the
Articles of Organization or by these By-Laws. No ballot shall be required for
any election unless requested by a stockholder present or represented at the
meeting and entitled to vote in the election.
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<PAGE>
Section 7. Voting.
Stockholders entitled to vote shall have one vote for each share of stock
entitled to vote held by them of record according to the records of the
corporation and a proportionate vote for a fractional share, unless otherwise
provided by the Articles of Organization. The corporation shall not, directly or
indirectly, vote any share of its own stock.
Section 8. Action by Consent.
Any action required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting if all stockholders entitled to vote
on the matter consent to the action in writing and the written consents are
filed with the records of the meetings of stockholders. Such consents shall be
treated for all purposes as a vote at a meeting.
Section 9. Proxies.
Stockholders entitled to vote may vote either in person or by proxy in
writing dated not more than six months before the meeting named therein, which
proxies shall be filed with the clerk or other person responsible to record the
proceedings of the meeting before being voted. Unless otherwise specifically
limited by their terms, such proxies shall entitle the holders thereof to vote
at any adjournment of such meeting but shall not be valid after the final
adjournment of such meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the corporation receives a specific written
notice to the contrary from any one of them. A proxy purporting to be executed
by or on behalf of a stockholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on the
challenger.
ARTICLE IV
----------
Directors
---------
Section 1. Powers.
The business of the corporation shall be managed by a
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<PAGE>
Board of Directors who shall have and may exercise all the powers of the
corporation except as otherwise reserved to the stockholders by law, by the
Articles of Organization or by these By-Laws. In the event of a vacancy in the
Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
Section 2. Enumeration, Election and Term of Office.
The Board of Directors shall consist of not less than three Directors,
except that whenever there shall be only two stockholders the number of
Directors shall be not less than two, and whenever there shall be only one
stockholder the number of Directors shall be not less than one. The number of
the Directors shall be as determined from time to time by the stockholders and
may be enlarged by vote of a majority of the Directors then in office. The
Directors shall be chosen at the annual meeting of the stockholders by such
stockholders as have the right to vote thereon, and each shall hold office until
the next annual election of Directors and until his successor is chosen and
qualified or until he sooner dies, resigns, is removed or becomes disqualified.
No Director need be a stockholder.
Section 3. Regular Meetings.
Regular meetings of the Board of Directors may be held at such times and
places within or without the Commonwealth of Massachusetts as the Board of
Directors may fix from time to time and, when so fixed, no notice thereof need
be given, provided that any Director who is absent when such times and places
are fixed shall be given notice of the fixing of such times and places. The
first meeting of the Board of Directors following the annual meeting of the
stockholders may be held without notice immediately after and at the same place
as the annual meeting of the stockholders or the special meeting held in lieu
thereof. If in any year a meeting of the Board of Directors is not held at such
time and place, any action to be taken may be taken at any later meeting of the
Board of Directors with the same force and effect as if held or transacted at
such meeting.
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<PAGE>
Section 4. Special Meetings.
Special meetings of the Directors may be held at any time and at any place
designated in the call of the meeting, when called by the President or the
Treasurer or by two or more Directors, reasonable notice thereof being given to
each Director by the Secretary or an Assistant Secretary, or, if there be none
by the Clerk or an Assistant Clerk, or by the officer or one of the Directors
calling the meeting.
Section 5. Notice.
It shall be reasonable and sufficient notice to a Director to send notice
by mail at least forty-eight hours or by telegram at least twenty-four hours
before the meeting addressed to him at his usual or last known business or
residence address or to give notice to him in person or by telephone at least
twenty-four hours before the meeting. Notice of a meeting need not be given to
any Director if a written waiver of notice, executed by him before or after the
meeting, if filed with the records of the meeting, or to any Director who
attends the meeting without protesting prior thereto or at its commencement the
lack of notice to him. Neither notice of a meeting nor a waiver of a notice need
specify the purposes of the meeting.
Section 6. Quorum.
At any meeting of the Directors, a quorum for any election or for the
consideration of any question shall consist of a majority of the Directors then
in office. Whether or not a quorum is present any meeting may be adjourned from
time to time by a majority of the votes properly cast upon the question, and the
meeting may be held as adjourned without further notice. When a quorum is
present at any meeting, the votes of a majority of the Directors present shall
be requisite and sufficient for election to any office and shall decide any
question brought before such meeting, except in any case where a larger vote is
required by law, by the Articles of Organization or by these By-Laws.
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<PAGE>
Section 7. Action by Consent:
Any action required or permitted to be taken at any meeting of the
Directors may be taken without a meeting if all the Directors consent to the
action in writing and the written consents are filed with the records of the
meetings of the Directors. Such consent shall be treated for all purposes as a
vote of the Directors at a meeting.
Section 8. Committees.
The Board of Directors, by vote of a majority of the Directors then in
office, may elect from its number an Executive Committee or other committees and
may delegate thereto some or all of its powers except those which by law, by the
Articles of Organization, or by these By-Laws may not be delegated. Except as
the Board of Directors may otherwise determine, any such committee may make
rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by these By-Laws for the Board of
Directors. All members of such committees shall hold such offices at the
pleasure of the Board of Directors. The Board of Directors may abolish any such
committee at any time. Any committee to which the Board of Directors delegates
any of its powers or duties shall keep records of its meetings and shall upon
request report its action to the Board of Directors. The Board of Directors
shall have power to rescind any action of any committee, but no such rescission
shall have retroactive effect.
Section 9. Participation in Meetings by telephone, etc.
Unless otherwise restricted by the Articles of Organization or these
By-Laws, members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other at the same time, and such participation in a meeting shall
constitute presence in person at the meeting.
ARTICLE V
---------
Officers and Agents
-------------------
Section 1. Enumeration; Qualification.
The officers of the corporation shall be a President, a Treasurer, a Clerk,
and such other officers, if any, as the incorporators at their initial meeting,
or the Directors from time to time, may in their discretion elect or appoint.
The corporation may also have such agents, if any, as the incorporators at their
initial meeting, or the Directors from time to time, may in their discretion
appoint.
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<PAGE>
Any officer may be but none need be a Director or stockholder. The Clerk shall
be a resident of Massachusetts unless the corporation has a resident agent
appointed for the purpose of service of process. Any two or more offices may be
held by the same person. Any officer may be required by the Directors to give
bond for the faithful performance of his duties to the corporation in such
amount and with such sureties as the Directors may determine. The premiums for
such bonds may be paid by the corporation.
Section 2. Powers.
Subject to law, to the Articles of Organization and to the other provisions
of these By-Laws, each officer shall have, in addition to the duties and powers
herein set forth, such duties and powers as are commonly incident to his office
and such duties and powers as the Directors may from time to time designate.
Section 3. Election.
The President, the Treasurer and the Clerk shall be elected annually by the
Directors at their first meeting following the annual meeting of the
stockholders. Other officers, if any, may be elected or appointed by the Board
of Directors at said meeting or at any other time.
Section 4. Tenure.
Except as otherwise provided by law or by the Articles of Organization or
by these By-Laws, the President, the Treasurer and the Clerk shall hold office
until the first meeting of the Directors following the next annual meeting of
the stockholders and until their respective successors are chosen and qualified,
and each other officer shall hold office until the first meeting of the
Directors following the next annual meeting of the stockholders and until their
respective successors are chosen and qualified, unless a different period shall
have been specified by the terms of his election or appointment, or in each case
until he sooner dies, resigns, is removed or becomes disqualified. Each agent
shall retain his authority at the pleasure of the Directors.
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<PAGE>
Section 5. President and Vice Presidents.
The President shall be the chief executive officer of the corporation and
shall, subject to the direction of the Board of Directors, have general
supervision and control of its business. Unless otherwise provided by the Board
of Directors he shall preside, when present, at all meetings of stockholders
and of the Board of Directors.
Any Vice President shall have such powers and shall perform such duties as
the Board of Directors may from time to time designate.
Section 6. Treasurer and Assistant Treasurers.
The Treasurer shall, subject to the direction of the Board of Directors,
have general charge of the financial affairs of the corporation and shall cause
to be kept accurate books of account. He shall have custody of all funds,
securities, and valuable documents of the corporation. except as the Board of
Directors may otherwise provide.
Any Assistant Treasurer shall have such powers and perform such duties as
the Board of Directors may from time to time designate.
Section 7. Clerk and Assistant Clerks.
The Clerk shall keep a record of the meetings of stockholders. In the event
there is no Secretary or he is absent, the Clerk or an Assistant Clerk shall
keep a record of the meetings of the Board of Directors. In the absence of the
Clerk from any meeting of stockholders, an Assistant Clerk if one be elected,
otherwise a Temporary Clerk designated by the person presiding at the meeting,
shall perform the duties of the Clerk.
Section 8. Secretary.
The Secretary, if one be elected or appointed, shall keep a record of the
meetings of the Board of Directors. In the absence of the Secretary, the Clerk
and any Assistant Clerk, a Temporary Secretary shall be designated by the person
presiding at such meeting to perform the duties of the Secretary.
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<PAGE>
ARTICLE VI
----------
Resignations, Removals and Vacancies
------------------------------------
Section 1. Resignations.
Any Director or officer may resign at any time by delivering his
resignation in writing to the President or the Clerk or to a meeting of the
Directors. Such resignation shall take effect at such time as is specified
therein, or if no such time is so specified then upon delivery thereof.
Section 2. Removals.
Directors, including Directors elected by the Directors to fill vacancies
in the Board, may be removed with or without assignment of cause by vote of the
holders of the majority of the shares entitled to vote in the election of
Directors, provided that the Directors of a class elected by a particular class
of stockholders may be removed only by the vote of the holders of a majority of
the shares of the particular class of stockholders entitled to vote for the
election of such Directors.
The Directors may by vote of a majority of the Directors then in office
remove any Director for cause.
The Directors may remove any officer from office with or without assignment
of cause by vote of a majority of the Directors then in office.
If cause is assigned for removal of any Director or officer, such Director
or officer may be removed only after a reasonable notice and opportunity to be
heard before the body proposing to remove him.
The Directors may terminate or modify the authority of any agent or
employee.
Except as the Directors may otherwise determine, no Director or officer who
resigns or is removed shall have any right to any compensation as such Director
or officer for any period following his resignation or removal, or any right to
damages on account of such removal whether his compensation be by the month or
by the year or otherwise, provided, however, that the foregoing provision shall
not prevent such
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<PAGE>
Director or officer from obtaining damages for breach of any contract of
employment legally binding upon the corporation.
Section 3. Vacancies.
Any vacancy in the Board of Directors, including a vacancy resulting from
an enlargement of the Board, may be filled by vote of a majority of the
Directors then in office or, in the absence of such election by the Directors,
by the stockholders at a meeting called for the purpose; provided, however, that
any vacancy resulting from action by the stockholders may be filled by the
stockholders at the same meeting at which such action was taken by them.
If the office of any officer becomes vacant, the Directors may elect or
appoint a successor by vote of a majority of the Directors present at the
meeting at which such election or appointment is made.
Each such successor shall hold office for the unexpired term of his
predecessor and until his successor shall be elected or appointed and qualified,
or until he sooner dies, resigns, is removed or becomes disqualified.
ARTICLE VII
-----------
Indemnification of Directors and Others
---------------------------------------
The corporation shall, to the extent legally permissible, indemnify any
person serving or who has served as a Director or officer of the corporation, or
at its request as a Director, Trustee, Officer, Employee or other Agent of any
organization in which the corporation owns shares or of which it is a creditor
against all liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees, reasonably
incurred by him in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in which he may be involved
or with which he may be threatened, while serving or thereafter, by reason of
his being or having been such a Director, Officer, Trustee, Employee or Agent,
except with respect to any matter as to which he shall have been adjudicated in
any proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation; provided, however,
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<PAGE>
that as to any matter disposed of by a compromise payment by such Director,
Officer, Trustee, Employee or Agent, pursuant to a consent decree or otherwise,
no indemnification either for said payment or for any other expenses shall be
provided unless:
(a) such compromise shall be approved as in the best interests of the
corporation, after notice that it involves such indemnification:
(i) by a disinterested majority of the directors then in office;
or
(ii) by the holders of a majority of the outstanding stock at the
time entitled to vote for Directors, voting as a single class,
exclusive of any stock owned by any interested Director or officer; or
(b) in the absence of action by disinterested directors or
stockholders, there has been obtained at the request of a majority of the
Directors then in office an opinion in writing of independent legal counsel
to the effect that such Director or officer appears to have acted in good
faith in the reasonable belief that his action was in the best interests of
the corporation.
Expenses including counsel fees, reasonably incurred by any such Director,
Officer, Trustee, Employee or Agent in connection with the defense or
disposition of any such action, suit or other proceeding may be paid from time
to time by the corporation in advance of the final disposition thereof upon
receipt of an undertaking by such individual to repay the amounts so paid to the
corporation if it is ultimately determined that indemnification for such
expenses is not authorized under this section. The right of indemnification
hereby provided shall not be exclusive of or affect any other rights to which
any such Director, Officer, Trustee, Employee or Agent may be entitled. Nothing
contained in this Article shall affect any rights to indemnification to which
corporate personnel other than such Directors, Officers, Trustees, Employees or
Agents may be entitled by contract or otherwise under law. As used in this
Article the terms "Director", "Officer", "Trustee", "Employee" and "Agent"
include their respective heirs, executors and administrators, and an
"interested" Director, Officer, Trustee, Employee or Agent is one against whom
in such capacity the proceedings in question or other proceedings on the same or
similar grounds is then pending.
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<PAGE>
ARTICLE VIII
------------
Stock
-----
Section 1. Stock Authorized.
The total number of shares and the par value, if any, of each class of
stock which the corporation is authorized to issue, and if more than one class
is authorized, a description of each class with the preferences, voting powers,
qualifications and special and relative rights and privileges as to each class
and any series thereof, shall be as stated in the Articles of Organization.
Section 2. Issue of Authorized Unissued Capital Stock.
Any unissued capital stock from time to time authorized under the Articles
of Organization may be issued by vote of the Directors. No such stock shall be
issued unless the cash, so far as due, or the property, services or expenses for
which it was authorized to be issued, has been actually received or incurred by,
or conveyed or rendered to, the corporation, or is in its possession as surplus.
Section 3. Certificates of Stock.
Each stockholder shall be entitled to a certificate in form selected by the
Board of Directors stating the number and class and the designation of the
series, if any, of the shares held by him. Such certificate shall be signed by
the President or a Vice President and the Treasurer or an Assistant Treasurer.
Such signatures may be facsimiles if the certificate is signed by a transfer
agent, or by a registrar, other than a Director, officer or employee of the
corporation.
Every certificate for shares of stock subject to any restriction on
transfer pursuant to the Articles of Organization, these By-Laws, or any
agreement to which the corporation is a party shall have the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement of the existence of such
restriction and a statement that the corporation will furnish a copy to the
holder of such certificate upon written request and without charge. Every
certificate issued when the corporation is authorized to issue more than one
class or series of stock shall set forth on its face or back
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<PAGE>
either the full text of the preferences, voting powers, qualifications and
special and relative rights of the shares of each class and series authorized to
be issued or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
Section 4. Transfers.
Subject to the restrictions, if any, imposed by the Articles of
Organization, these By-Laws or any agreement to which the corporation is a
party, shares of stock shall be transferred on the books of the corporation only
by the surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment of such shares or by a written power of attorney to sell, assign, or
transfer such shares, properly executed, with necessary transfer stamps affixed,
and with such proof that the endorsement, assignment or power of attorney is
genuine and effective as the corporation or its transfer agent may reasonably
require. Except as may be otherwise required by law, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect thereto, regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books
of the corporation in accordance with the requirements of these By-Laws. It
shall be the duty of each stockholder to notify the corporation of his post
office address.
Section 5. Lost, Mutilated, or Destroyed Certificates.
Except as otherwise provided by law, the Board of Directors may determine
the conditions upon which a new certificate of stock may be issued in place of
any certificate alleged to have been lost, mutilated or destroyed. It may, in
its discretion, require the owner of a lost, mutilated or destroyed certificate,
or his legal representative, to give a bond, sufficient in its opinion, with or
without surety, to indemnify the corporation against any loss or claim which may
arise by reason of the issue of a certificate in place of such lost, mutilated
or destroyed stock certificate.
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<PAGE>
Section 6. Transfer Agent and Registrar.
The Board of Directors may appoint a transfer agent or a registrar or both
for its capital stock or any class or series thereof and require all
certificates for such stock to bear the signature or facsimile thereof of any
such transfer agent or registrar.
Section 7. Setting Record Date and Closing Transfer Records.
The Board of Directors may fix in advance a time not more than sixty days
before (i) the date of any meeting of the stockholders or (ii) the date for the
payment of any dividend or the making of any distribution to stockholders or
(iii) the last day on which the consent or dissent of stockholders may be
effectively expressed for any purpose, as the record date for determining the
stockholders having the right to notice and to vote at such meeting, or the
right to receive such dividend or distribution, or the right to give such
consent or dissent. If a record date is set, only stockholders of record on the
date shall have such right notwithstanding any transfer of stock on the records
of the corporation after the record date. Without fixing such record date, the
Board of Directors may close the transfer records of the corporation for all or
any part of such sixty-day period.
If no record date is fixed and the transfer books are not closed, then the
record date for determining stockholders having the right to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, and the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors acts with respect thereto.
ARTICLE IX
----------
Miscellaneous Provisions
------------------------
Section 1. Execution of Papers.
All deeds, leases, transfers, contracts, bonds, notes, releases, checks,
drafts and other obligations authorized
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<PAGE>
to be executed on behalf of the corporation shall be signed by the President or
the Treasurer except as the Directors may generally or in particular cases
otherwise determine.
Section 2. Voting of Securities.
Except as the Directors may generally or in particular cases otherwise
specify, the President or the Treasurer may on behalf of the corporation vote or
take any other action with respect to shares of stock or beneficial interest of
any other corporation, or of any association, trust or firm, of which any
securities are held by this corporation, and may appoint any person or persons
to act as proxy or attorney-in-fact for the corporation, with or without power
of substitution, at any meeting thereof.
Section 3. Corporate Seal.
The seal of the corporation shall be a circular die with the name of the
corporation, the word "Massachusetts" and the year of its incorporation cut or
engraved thereon, or shall be in such other form as the Board of Directors may
from time to time determine.
Section 4. Corporate Records.
The original, or attested copies of the Articles of Organization, By-Laws
and records of all meetings of the incorporators and stockholders, and the stock
and transfer records, which shall contain the names of all stockholders and the
record address and the amount of stock held by each, shall be kept in
Massachusetts at the principal office of the corporation, or at an office of its
transfer agent or of its Clerk or of its Resident Agent. Said copies and records
need not all be kept in the same office. They shall be available at all
reasonable times to the inspection of any stockholder for any proper purpose but
not to secure a list of stockholders for the purpose of selling said list or
copies thereof or of using the same for a purpose other than in the interest of
the applicant, as a stockholder, relative to the affairs of the corporation.
Section 5. Evidence of Authority.
A certificate by the Clerk or Secretary or an Assistant
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<PAGE>
or Temporary Clerk or Secretary as to any matter relative to the Articles of
Organization, By-Laws, records of the proceedings of the incorporators,
stockholders, Board of Directors, or any committee of the Board of Directors, or
stock and transfer records or as to any action taken by any person or persons as
an officer or agent of the corporation, shall as to all persons who rely thereon
in good faith be conclusive evidence of the matters so certified.
ARTICLE X
---------
Amendments
----------
These By-Laws may be amended or repealed in whole or in part by the
affirmative vote of the holders of a majority of the shares of each class of the
capital stock at the time outstanding and entitled to vote at any annual or
special meeting of stockholders, provided that notice of the substance of the
proposed amendment is stated in the notice of such meeting. If authorized by the
Articles of Organization, the Directors may make, amend or repeal the By-Laws,
in whole or in part, except with respect to any provision thereof which by law,
the Articles of Organization or the By-Laws requires action by the stockholders.
Not later than the time of giving notice of the meeting of stockholders next
following the making, amending or repealing by the Directors of any By-Law,
notice thereof stating the substance of such change shall be given to all
stockholders entitled to vote on amending the By-Laws. No change in the date
fixed in these By-Laws for the annual meeting of stockholders may be made within
sixty days before the date fixed in these By-Laws, and in case of any change in
such date, notice thereof shall be given to each stockholder in person or by
letter mailed to his last known post office address at least twenty days before
the new date fixed for such meeting.
Any By-Law adopted, amended or repealed by the Directors may be repealed,
amended or reinstated by the stockholders entitled to vote on amending the
By-Laws.
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================================================================================
STATE OF MARYLAND
DEPARTMENT OF
ASSESSMENTS AND TAXATION
301 West Preston Street Baltimore, Maryland 21201
DATE: JUNE 12, 1995
THIS IS TO ADVISE YOU THAT THE ARTICLES OF INCORPORATION FOR CHI
INTERNATIONAL, INC. WERE RECEIVED AND APPROVED FOR RECORD ON JUNE 9, 1995 AT
2:17 PM.
FEE PAID: 70.00
[SEAL OF THE STATE OF MARYLAND]
JOSEPH V. STEWART
CHARTER SPECIALIST
================================================================================
<PAGE>
ARTICLES OF INCORPORATION
-------------------------
OF
--
CHI INTERNATIONAL, INC.
-----------------------
The undersigned, being a natural person and acting as incorporator,
does hereby adopt the following Articles of Incorporation for the purpose of
forming a business corporation in the State of Maryland, pursuant to the
provisions of the Maryland General Corporation Law.
FIRST: (1) The name of the incorporator is David Smith.
(2) The said incorporator's address, including the street and
number, if any, including the county or municipal area, and including the state
or country, is 11 East Chase Street, Baltimore, Maryland 21202.
(3) The said incorporator is at least eighteen years of age.
(4) The said incorporator is forming the corporation named in these
Articles of Incorporation under the general laws of the State of Maryland, to
wit, the Maryland General Corporation Law.
SECOND: The name of the corporation (hereinafter called the
"corporation") is CHI INTERNATIONAL, INC.
THIRD: The corporation is formed for the following purpose or
purposes:
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use,
and otherwise deal in and with real or personal property, or any interest
therein, wherever situated, and to sell, convey, lease, exchange, transfer
or otherwise dispose of, or mortgage or pledge, all or any of its property
and assets, or any interest therein, wherever situated.
To carry on a general mercantile, industrial, investing, and trading
business in all its branches; to devise, invent, manufacture, fabricate,
assemble, install, service, maintain, alter, buy, sell, import, export,
license as licensor or licensee, lease as lessor or lessee, distribute,
job, enter into, negotiate, execute, acquire, and assign contracts in
respect of, acquire, receive, grant, and assign licensing arrangements,
options, franchises, and other rights in respect of, and
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<PAGE>
generally deal in and with, at wholesale and retail, as principal, and as sales,
business, special, or general agent, representative, broker, factor, merchant,
distributor, jobber, advisor, and in any other lawful capacity, goods, wares,
merchandise, commodities, and unimproved, improved, finished, processed, and
other real, personal, and mixed property of any and all kinds, together with the
components, resultants, and by-products thereof.
To engage generally in the real estate business as principal, agent,
broker, and in any lawful capacity, and generally to take, lease, purchase, or
otherwise acquire, and to own, use, hold, sell, convey, exchange, lease,
mortgage, work, clear, improve, develop, divide, and otherwise handle, manage,
operate, deal in, and dispose of real estate, real property, lands,
multiple-dwelling structures, houses, buildings, and other works and any
interest or right therein; to take, lease, purchase, or otherwise acquire, and
to own, use, hold, sell, convey, exchange, hire, lease, pledge, mortgage, and
otherwise handle, and deal in and dispose of, as principal, agent, broker, and
in any lawful capacity, such personal property, chattels, chattels real, rights,
easements, privileges, choses in action, notes, bonds, mortgages, and securities
as may lawfully be acquired, held, or disposed of; and to acquire, purchase,
sell, assign, transfer, dispose of, and generally deal in and with, as
principal, agent, broker, and in any lawful capacity, mortgages and other
interests in real, personal, and mixed properties; to carry on a general
construction, contracting, building, and realty management business as
principal, agent, representative, contractor, subcontractor, and in any other
lawful capacity.
To apply for, register, obtain, purchase, lease, take licenses in
respect of, or otherwise acquire, and to hold, own, use, operate, develop,
enjoy, turn to account, grant licenses and immunities in respect of,
manufacture under and to introduce, sell, assign, mortgage, pledge, or otherwise
dispose of, and, in any manner deal with and contract with reference to:
(a) inventions, devices, formulae, processes, and any
improvements and modifications thereof;
(b) letters patent, patent rights, patented processes,
copyrights, designs, and similar rights, trade-marks, trade symbols
and other indications of origin and ownership granted by or
recognized under the laws of the United States of America or of any
state or subdivision thereof, or of any foreign country or
subdivision thereof, and all rights connected therewith or
appertaining thereunto;
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<PAGE>
(c) franchises, licenses, grants, and concessions.
To have all of the powers conferred upon corporations organized
under the provisions of the Maryland General Corporation Law.
FOURTH: The address, including street and number, if any, and the
county or municipal area, of the principal office of the corporation within the
State of Maryland, is c/o The Prentice-Hall Corporation System, Maryland, 11
East Chase Street, Baltimore City, Maryland 21202.
FIFTH: The name and the address, including street and number, if
any, and the county or municipal area, of the resident agent of the corporation
within the State of Maryland, are The Prentice-Hall Corporation System,
Maryland, 11 East Chase Street, Baltimore City, Maryland 21202.
SIXTH: (1) The total number of shares of stock which the corporation
has authority to issue is one thousand, all of which are of a par value of one
dollar each and are designated as Common Stock.
(2) The aggregate par value of all the authorized shares of stock is
one thousand dollars.
(3) The Board of Directors of the corporation is authorized, from
time to time, to issue any additional stock or convertible securities of the
corporation without the approval of the holders of outstanding stock.
(4) Provisions, if any, governing the restriction on the
transferability of any of the shares of stock of the corporation may be set
forth in the Bylaws of the corporation or in any agreement or agreements duly
entered into.
(5) To the extent permitted by Section 2-104(b)(5) of the Maryland
General Corporation Law, notwithstanding any provision of the Maryland General
Corporation Law requiring a greater proportion than a majority of the votes
entitled to be cast in order to take or authorize any action, any such action
may be taken or authorized upon the concurrence of at least a majority of the
aggregate number of votes entitled to be cast thereon.
SEVENTH: (1) The number of directors of the corporation, until such
number shall be changed by the Bylaws of the corporation, is one.
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<PAGE>
(2) The name of the person who will serve as director of the
corporation until the first annual meeting of stockholders and until his
successor is elected and qualified is as follows:
E. Merle Randolph
(3) The initial Bylaws of the corporation shall be adopted by the
initial directors. Thereafter the power to adopt, alter, and repeal the Bylaws
of the corporation shall be vested in the Board of Directors of the corporation.
(4) The corporation shall to the fullest extent permitted by the
Maryland General Corporation Law as the same may be amended and supplemented,s
and, without limitation the generality of the foregoing, in accordance with
Section 2-418 of said Maryland General Corporation Law, indemnify any and all
persons whom it shall have power to indemnify under said law from and against
any and all of the expenses, liabilities or other matters referred to in or
covered by said Maryland General Corporation Law.
EIGHTH: From time to time any of the provisions of these Articles of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the Maryland General Corporation Law at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and any
contract rights at any time conferred upon the stockholders of the corporation
by these Articles of Incorporation are granted subject to the provisions of this
Article.
IN WITNESS WHEREOF, I have adopted and signed these Articles of
Incorporation and do hereby acknowledge that the adoption and signing are my
act.
Dated: June ___, 1995.
__________________________________
David Smith
-4-
BYLAWS
------
OF
CHI INTERNATIONAL, INC.
-----------------------
(a Maryland corporation)
-----------
ARTICLE I
---------
STOCKHOLDERS
------------
1. CERTIFICATES REPRESENTING STOCK. Certificates representing shares
of stock shall set forth thereon the statements prescribed by Sections 2-207 and
2-211 of the Maryland General Corporation Law and by any other applicable
provision of law and shall be signed by the President or the Chairman of the
Board, if any, or a Vice-President and countersigned 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 of it or in any other form. The
signatures of any such officers may be either manual or facsimile signatures. In
case any such officer who has signed manually or by facsimile any such
certificate ceases to be such officer before the certificate is issued, it may
nevertheless be issued by the corporation with the same effect as if the officer
had not ceased to be such officer as of the date of its issue.
No certificate representing shares of stock shall be issued for any
share of stock until such share is fully paid, except as otherwise authorized by
the provisions of Section 2-210 of the Maryland General Corporation Law.
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the Board of Directors may, in its discretion, require the owner
of any such certificate to give bond, with sufficient surety, to the corporation
to indemnify it against any 1055 or claim that may arise by reason of the
issuance of a new certificate.
Upon compliance with the provisions of Section 2-514 of the Maryland
General Corporation Law, the Board of Directors of the corporation may adopt by
resolution a procedure by which a stockholder of the corporation may certify in
writing to the corporation that any shares registered in the name of the
stockholder are held for the account of a specified person other than the
stockholder.
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<PAGE>
2. FRACTIONAL SHARE INTERESTS OR SCRIP. The corporation may, but
shall not be obliged to, issue fractional shares of stock, eliminate a
fractional interest by rounding off to a full share of stock, arrange for the
disposition of a fractional interest by the person entitled to it, pay cash for
the fair value of a fractional share of stock determined as of the time when the
person entitled to receive it is determined, or issue scrip or other evidence of
ownership, and which shall entitle its holder to exchange such scrip or other
evidence of ownership aggregating a full share for a certificate which
represents the share, but such scrip or other evidence of ownership shall not,
unless otherwise provided, entitle the holder to exercise any voting right, or
to receive dividends thereon or to participate in any of the assets of the
corporation in the event of liquidation. The Board of Directors may impose any
reasonable condition on the issuance of scrip or other evidence of ownership,
and may cause such scrip or evidence of ownership to be issued subject to the
condition that it shall become void if not exchanged for a certificate
representing a full share of stock before a specified date or subject to the
condition that the shares for which such scrip or evidence of ownership is
exchangeable may be sold by the corporation and the proceeds thereof distributed
to the holders of such scrip or evidence of ownership, or subject to a provision
for forfeiture of such proceeds to the corporation if not claimed within a
period of not less than three years from the date the scrip or other evidence of
ownership was originally issued.
3. SHARE TRANSFERS. Upon compliance with provisions restricting the
transferability of shares of stock, if any, transfers of shares of stock of the
corporation shall be made only on the stock transfer books of the corporation by
the record 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 on surrender of the certificate or
certificates for such shares of stock properly endorsed and the payment of all
taxes due thereon, if any.
4. RECORD DATE FOR STOCKHOLDERS. The Board of Directors may set a
record date or direct that the stock transfer books be closed for a stated
period for the purpose of making any proper determination with respect to
stockholders, including which stockholders are entitled to notice of a meeting,
to vote at a meeting, to receive a dividend, or to be allotted other rights;
provided, that, except as may be otherwise provided herein, any such record date
shall be not more than ninety days before the date on which the action requiring
the determination will be taken, that any such closing of the transfer books may
not be for a period longer than twenty days, and that, in the case of a meeting
of stockholders, any such record date or any such closing of the transfer books
shall be at least ten days before the date of the meeting. If a record date is
not set, and, if the stock transfer books are not closed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be the later of either the close of business on the day on
which notice of the meeting is mailed or the thirtieth day before the meeting,
and the record date for determining stockholders entitled to receive payment of
a dividend or an allotment of any rights shall be the close of business on the
day on which the resolution of the Board of Directors declaring the dividend or
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<PAGE>
allotment of rights is adopted, but any such payment of a dividend or allotment
of rights shall not be made more than sixty days after the date on which the
resolution is adopted; and a meeting of stockholders convened on the date for
which it was called may be adjourned from time to time without further notice to
a date not more than one hundred and twenty days after the original record date.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right
to notice of a meeting of stockholders or 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 "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class or series upon
which or upon whom the Articles of Incorporation confer such rights where there
are two or more classes or series of shares or upon which or upon whom the
provisions of the Maryland General Corporation Law may confer such rights or the
right of dissent notwithstanding that the Articles of Incorporation may provide
for more than one class or series of shares of stock, one or more of which are
limited or denied such rights thereunder.
6. STOCKHOLDER MEETINGS.
- TIME. The annual meeting of stockholders shall be held on the date
fixed, from time to time, by the directors, within the thirty-one day period
commencing with the 15th day of April, for the election of directors and the
transaction of any business within the powers of the corporation. A special
meeting shall be held on the date fixed by the directors.
- PLACE. Annual meetings and special meetings shall be held at such
place, either within the State of Maryland or at such other place within the
United States, as the directors may, from time to time, set. Whenever the
directors shall fail to set such place, or, whenever stockholders entitled to
call a special meeting shall call the same, and a place of meeting is not set,
the meeting shall be held at the principal office of the corporation in the
State of Maryland.
- CALL. Annual meetings may be called by the directors or the
President or by any officer instructed by the directors or the President to call
the meeting. Except as may be otherwise provided by the provisions of the
Maryland General Corporation Law, special meetings may be called in like manner
and shall be called by the Secretary whenever the holders of shares entitled to
at least twenty-five per cent of all the votes entitled to be cast at such
meeting shall make a duly authorized request that such meeting be called.
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<PAGE>
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of
all meetings shall be given by the Secretary and shall state the time and place
of the meeting. The notice of annual meeting shall state that the meeting is
called for the election of directors and for the transaction of other business
which may properly come before the meeting, and shall (if any other action which
could be taken at a special meeting is to be taken at such annual meeting)
contain any additional statements required in a notice of a special meeting, and
shall include a copy of any requisite statements or provisions prescribed by the
provisions of the Maryland General Corporation Law; provided, however, that any
business of the corporation may be transact at any annual meeting without being
specially noticed unless the provisions of the Maryland General Corporation Law
provide otherwise. The notice of a special meeting shall in all instances state
the purpose or purposes for which the meeting is called and shall include a copy
of any requisite statements or provisions prescribed by the provisions of the
Maryland General Corporation Law. Written notice of any meeting shall be given
to each stockholder either by mail or personally delivered to him or by leaving
it at his residence or usual place of business not less than ten days and not
more than ninety days before the date of the meeting, unless any provisions of
the Maryland General Corporation Law shall prescribe a difference elapsed period
of time, to each stockholder at his address appearing on the books of the
corporation or the address supplied by him for the purpose of notice. If mailed,
notice shall be deemed to be given when deposited in the United States mail
addressed to the stockholder at his address as it appears on the records of the
corporation with postage thereon prepaid. Whenever any notice of the time, place
or purpose of any meeting of stockholders is required to be given under the
provisions of the Articles of Incorporation, these Bylaws or of the provisions
of the Maryland General Corporation Law, a waiver thereof in writing, signed by
the stockholder and filed with the records of the meeting, whether before or
after the holding thereof, or his presence in person or by proxy at the meeting
shall be deemed equivalent to the giving of such notice to such stockholder. The
foregoing requirements of notice shall also apply, whenever the corporation
shall have any class of stock which is not entitled to vote, to holders of stock
who are not entitled to vote a the meeting, but who are entitled to notice
thereof and to dissent form any action taken thereat.
STATEMENT OF AFFAIRS. The President of the corporation, or, if the
Board of Directors shall determine otherwise, some other executive officer
thereof, shall prepare or cause to be prepared annually a full and correct
statement of the affairs of the corporation, including a balance sheet and a
financial statement of operations for the preceding fiscal year, which shall be
submitted at the Annual Meeting and place on file within twenty days thereafter
at the principal office of the corporation in the State of Maryland.
CONDUCT OF MEETINGS. Meetings of the stockholder shall be presided
over by one of the following officers in the order of seniority and if present
and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice-President, or, if any one of the foregoing is in
office and present and acting, by a chairman to be chosen by the shareholders.
The Secretary of the corporation, or in his absence, an Assistant
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<PAGE>
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the Chairman of the meeting shall appoint
a secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether for the purposes of determining his presence
at a meeting, or whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting,
or otherwise. The authorization shall be effected as prescribed by the
provisions of Section 2-507 of the Maryland General Corporation Law.
- INSPECTORS OF ELECTION. The directors, in advance of any meeting,
may, but need not, appoint one or more inspectors to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made by the 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 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 stockholders. On request of the person presiding at the meeting or any
stockholder, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
- QUORUM. Except as may otherwise be required by the provisions of
the Maryland General Corporation Law, the Articles of Incorporation, or these
Bylaws, the presence in person or by proxy at a meeting of the stockholders
entitled to cast at least a majority of the votes entitled to be cast at the
meeting shall constitute a quorum.
- VOTING. Each share of stock shall entitle the holder thereof to
one vote except in the election of directors, at which each said vote may be
cast for as many persons as there are directors to be elected. Except as may
otherwise be provided in the provisions of the Maryland General Corporation Law,
the Articles of Incorporation or these Bylaws, a majority of all the votes cast
at a meeting of stockholders at which a quorum is present shall be sufficient to
approve any matter which may properly come before the meeting. A plurality of
all the votes cast at a meeting of stockholders at which a quorum is present is
sufficient to elect a director.
-5-
<PAGE>
7. INFORMAL ACTION. Any action required or permitted to be taken at
any meeting of stockholders may be taken without a meeting if the following are
filed with the records of the meeting: an unanimous written consent which sets
forth the action and is signed by each stockholder entitled to vote on the
matter, and, as applicable, a written waiver of any right to dissent signed by
each stockholder entitled to notice of the meeting but not entitled to vote at
it.
ARTICLE II
----------
BOARD OF DIRECTORS
------------------
1. FUNCTIONS AND DEFINITION. The business and the affairs of the
corporation shall be managed by or under the direction of its Board of
Directors. All powers of the corporation may be exercised by or under authority
of said Board of Directors. The use of the phrase "entire board" herein refers
to the total number of directors which the corporation would have if there were
no vacancies.
2. QUALIFICATIONS AND NUMBER. Each director shall be a natural
person of full age. A director need not be a stockholder, a citizen of the
United States, or a resident of the State of Maryland. The initial Board of
Directors shall consist of one person, which is the number set forth in the
Articles of Incorporation. Thereafter the number of directors constituting the
entire board shall be at least three, except that when the number of
stockholders is fewer than three, the number of directors may be the same as the
number of said stockholders. Except for the first Board of Directors, such
number may be set from time to time by action of the stockholders or of a
majority of the entire Board of Directors or, if the number is not so set, the
number shall be one. The number of directors may be increased or decreased by an
amendment to these Bylaws, provided, however, that the tenure of office of a
director shall not be affected by any decrease in the number of directors.
3. ELECTION AND TERM. The first Board of Directors shall consist of
the directors named in the Articles of Incorporation and shall hold office until
the first annual meeting of stockholders or until their successors have been
elected and qualified. Thereafter, directors who are elected at an annual
meeting of stockholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders and until their successors have been elected and
qualified. In the interim between annual meetings of stockholders or of special
meetings of stockholders called for the election of directors, newly created
directorships and any vacancies in the Board of Directors, including vacancies
resulting from the removal of directors by the stockholders which have not been
filled by said stockholders, may be filled by the Board of Directors. Newly
created directorships filled by the Board of Directors shall be by action of a
majority of the entire Board of Directors. All other vacancies to be filled by
the Board of Directors may be
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<PAGE>
filled by a majority of the remaining members of the Board of Directors, whether
or not sufficient to constitute a quorum.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall set,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or without the
State of Maryland as shall be set by the Board.
- CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, of the President, or of a
majority of the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. The notice of any meeting need not specify the business to be
transacted or the purpose of the meeting. Whenever any notice of the time,
place, or purpose of any meeting of directors or any committee thereof is
required to be given under the provisions of the Maryland General Corporation
Law or of these Bylaws, a waiver thereof in writing, signed by the director or
committee member entitled to such notice and filed with the records of the
meeting, whether before or after the meeting, or presence at the meeting, shall
be deemed equivalent to the giving of such notice to such director or such
committee member.
- QUORUM AND ACTION. A majority of the entire Board of Directors
shall constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon a majority of the directors in office shall constitute a
quorum, provided such majority shall constitute at least one-third of the entire
Board and, in no event, less than two directors provided, that whenever the
entire Board of Directors consists of one director, that one director shall
constitute a quorum. Except as in the Articles of Incorporation and herein
otherwise provided and, except as in provisions of the Maryland General
Corporation Law otherwise provided, the action of the directors present at a
meeting at which a quorum is present shall be the action of the Board of
Directors. Members of the Board of Directors or of a committee thereof may
participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time; and participation by such means shall constitute
presence in person at a meeting.
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<PAGE>
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the President, if
present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed,
with or without cause, pursuant to the provisions of Section 2-406 of the
Maryland General Corporation Law.
6. COMMITTEES. The Board of Directors may appoint from among its
members an Executive Committee and other committees composed of two or more
directors, and may delegate to such committee or committees any of the powers of
the Board of Directors except such powers as may not be delegated under the
provisions of the Maryland General Corporation Law. In the absence of any member
of any such committee, the members thereof present at any meeting, whether or
not they constitute a quorum, may appoint a member of the Board of Directors to
act in the place of such absent member.
7. INFORMAL ACTION. 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 a written consent to such action is signed by all members
of the Board of Directors or any such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the Board or any
such committee.
ARTICLE III
-----------
OFFICERS
--------
The corporation shall have a President, a Secretary, and a
Treasurer, and may have a Chairman of the Board, a Vice-Chairman of the Board
and one or more Vice-Presidents, who shall be elected by the Board of Directors,
and may also have such other officers, assistant officers, and agents as the
Board of Directors shall authorize from time to time, each of whom shall be
elected or appointed in the manner prescribed by the Board of Directors. Any two
or more offices, except those of President and Vice-President, may be held by
the same person, but no person shall execute, acknowledge or verify any
instrument in more than one capacity, if such instrument is required by law to
be executed, acknowledged or verified by more than one officer. Unless otherwise
provided in the resolution of election or appointment, each officer shall hold
office until the meeting of the Board of Directors following the next annual
meeting of stockholders and until his successor has been elected or appointed
and qualified.
The officers and agents of the corporation shall have the authority
and perform the duties in the management of the corporation as determined by the
resolution electing or appointing them.
-8-
<PAGE>
Any officer or agent may be removed by the Board of Directors
whenever, in its judgment, the best interests of the corporation will be served
thereby.
ARTICLE IV
----------
PRINCIPAL OFFICE - RESIDENT AGENT - STOCK LEDGER
------------------------------------------------
The address of the initial principal office of the corporation in
the State of Maryland and the name and the address of the initial resident agent
of the corporation in the State of Maryland are set forth in the Articles of
Incorporation.
The corporation shall maintain, at its principal office in the State
of Maryland or at a business office or an agency of the corporation an original
or duplicate stock ledger containing the name and address of each stockholder
and the number of shares of each class held by each stockholder. Such stock
ledger may be in written form or any other form capable of being converted into
written form within a reasonable time for visual inspection.
The corporation shall keep at its principal office in the State of
Maryland the a certified copy of the Bylaws, including all amendments thereto,
and shall duly file annual statement of affairs of the corporation.
ARTICLE V
---------
CORPORATE SEAL
--------------
The corporate seal shall have inscribed thereon the name of the
corporation and shall be in such form and contain such other words and/or
figures as the Board of Directors shall determine or the law require.
ARTICLE VI
----------
FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed, and shall be
subject to change of Directors.
ARTICLE VII
-----------
CONTROL OVER BYLAWS
-------------------
The power to adopt, alter, amend, and repeal the Bylaws is vested in
the Board of Directors of the corporation.
-9-
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
ARTICLE I
The name of the corporation is:
Syratech Security Corporation
ARTICLE II
The purpose of the corporation is to engage in the
following business activities:
See Continuation Sheet IIA attached hereto and made
a part hereof.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper with a left margin of at least 1 inch. Additions to more than one article
may be made on a single sheet so long as each article requiring each addition is
clearly indicated.
SECRETARY OF
COMMONWEALTH
1995 APR 19 PM 12:47
CORPORATION DIVISION
<PAGE>
ARTICLE III
The types and classes of stock and the total number of shares and par value, if
any, of each type and class of stock which the corporation is authorized to
issue is as follows:
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE WITH PAR VALUE
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
Common: None Common: 1,500 $1.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: None Preferred: None None
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
None
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
ARTICLE VI
*Other lawful provisions, if any, for the conduct and regulation of the business
and affairs of the corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the corporation, or of its directors or
stockholders, or of any class of stockholders:
See Continuation Sheet VIA attached hereto and made a part hereof.
*If there are no provisions state "None".
Note: The preceding six (6) articles are considered to be permanent and may ONLY
be changed by filing appropriate Articles of Amendment.
<PAGE>
ARTICLE VII
The effective date of organization of the corporation shall be the date approved
and filed by the Secretary of the Commonwealth. If a later EFFECTIVE DATE is
desired, specify such date which shall not be more than thirty days after the
date of filing.
The information contained in ARTICLE VIII is not a permanent part of the
Articles of Organization and may be changed only by filing the appropriate form
provided therefor.
ARTICLE VIII
a. The street address of the principal office of the corporation in
Massachusetts is: (post office boxes are not acceptable)
175 McClellan Highway, East Boston, Massachusetts 02128
b. The name, residence and post office address (if different) of the
directors and officers of the corporation are:
NAME RESIDENCE POST OFFICE ADDRESS
President: Leonard Florence 99 Lyman Road
Chestnut Hill, MA 02167 Same
Treasurer: E. Merle Randolph 24 Boren Lane
Boxford, MA 01921 Same
Clerk: Faye A. Florence 770 Boylston Street, Apt. 17D
Boston, MA 02199 Same
Directors: Leonard Florence 99 Lyman Road
Chestnut Hill, MA 02167 Same
c. The fiscal year (i.e., tax year) of the corporation shall end on the last day
of the month of: December
d. The name and business address of the resident agent of the corporation, if
any, is:
None
ARTICLE IX
By-laws of the corporation have been duly adopted and the president, treasurer,
clerk and directors whose names are set forth above, have been duly elected.
IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we, whose
signature(s) appear below as incorporator(s) and whose name(s) and business or
residential address(es) are clearly typed or printed beneath each signature do
hereby associate with the intention of forming this corporation under the
provisions of General Laws, Chapter 156B and do hereby sign these Articles of
Organization as incorporator(s) this 19 day of April, in the year 1995.
/s/ E. M. Randolph
- --------------------------------------------------------------------------------
E. Merle Randolph
175 McClellan Highway
East Boston, MA 02128
- --------------------------------------------------------------------------------
(617)561-2200
- --------------------------------------------------------------------------------
Note: If an existing corporation is acting as incorporator, type in the exact
name of the corporation, the state or other jurisdiction where it was
incorporated, the name of the person signing on behalf of said corporation and
the title he/she holds or other authority by which such action is taken.
<PAGE>
SYRATECH SECURITY CORPORATION
-----------------------------
CONTINUATION SHEET II A
-----------------------
To engage exclusively in buying, selling, dealing in or holding, on its
own behalf and not as a broker, securities (except securities of a corporation
defined in Chapter 63 of the Massachusetts General Laws as DISC), including,
without limitation, stocks, shares, bonds, notes, and obligations of and
interests in corporations, joint-stock companies, trusts, associations, firms or
persons and all forms of public and municipal securities of this or any other
country, or any right or interest therein, and, while owner thereof, to exercise
all rights, powers and privileges of ownership in the same manner and to the
same extent that an individual might.
To engage in, transact and carry on any or all of the above businesses or
any other business activity necessary or convenient for or incidental to any or
all of the foregoing or which can advantageously be conducted in connection
therewith, and to engage in, transact and carry on any other activity which a
corporation classified as a security corporation under the Excise (Income) Tax
laws of The Commonwealth of Massachusetts may lawfully engage in, transact or
conduct.
<PAGE>
SYRATECH SECURITY CORPORATION
-----------------------------
CONTINUATION SHEET VIA
----------------------
The directors may make, amend, or repeal the by-laws in whole or in part,
except with respect to any provision thereof which by law or the by-laws
requires action by the stockholders.
Meetings of the stockholders of the corporation may be held anywhere in
the United States.
This corporation may become a partner in any general or limited
partnership or in any joint venture or in any other business enterprise
organized for the purpose of accomplishing any of the purposes contained in the
Corporation's Articles of Organization. Notwithstanding the foregoing, this
corporation shall only engage in, transact or carry on activities which a
corporation classified as a security corporation under the Excise (Income) Tax
Laws of the Commonwealth of Massachusetts may lawfully engage in, transact or
conduct.
To the maximum extent permitted by Massachusetts General Laws, Chapter
156B, as the same exists or may thereafter be amended, no director of the
corporation shall be personally liable to the corporation or any of its
stockholders for monetary damages arising out of such director's breach of
fiduciary duty as a director of the corporation. No amendment to or repeal of
the provisions of this paragraph shall apply to or have any effect on the
liability or alleged liability of any director of the corporation for or with
respect to any act or failure to act of such director occurring prior to such
amendment or repeal.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
================================================================================
I hereby certify that, upon examination of these Articles of Organization, duly
submitted to me, it appears that the provisions of the General Laws relative to
the organization of corporations have been complied with, and I hereby approve
said articles; and the filing fee in the amount of $ _______ having been paid,
said articles are deemed to have been filed with me this _________ day of
_________________ 19 _____.
Effective date:_________________________________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
FILING FEE: One tenth of one percent of the total authorized capital stock, but
not less than $200.00. For the purpose of filing, shares of stock with a par
value less than one dollar, or no par stock, shall be deemed to have a par value
of one dollar per share.
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Marcia L. Moore, Esq.
- --------------------------------------------------------------------------------
Syratech Corporation
- --------------------------------------------------------------------------------
175 McClellan Highway
East Boston, MA 02128
- --------------------------------------------------------------------------------
Telephone: (617)561-2200
----------------------------------------------------------------------
FEDERAL IDENTIFICATION
NO. 04-3270184
----------
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, Maria L. Moore , Vice President
----------------------------------------------------
and Faye A. Florence , Clerk
----------------------------------------------------
of Syratech Security Corporation
----------------------------------------------------
(Exact name of corporation)
located at 175 McClellan Highway, East Boston, Massachusetts 02128,
-------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
2, 6
- -------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on
April 9, 1997, by vote of:
- -------------
1500 shares of common stock of 1500 shares outstanding,
- ---------- ------------------------ -----------
(type, class & series, if any)
shares of of shares outstanding,
- ---------- ------------------------ -----------
(type, class & series, if any)
and
shares of of shares outstanding,
- ---------- ------------------------ -----------
(type, class & series, if any)
(1)**being at least a majority of each type, class or series outstanding and
entitled to vote thereon:/or (2)**being at least two-thirds of each type, class
or series outstanding and entitled to vote thereon and of each type, class or
series of stock whose rights are adversely affected thereby:
Article 2 is hereby deleted and a new Article 2 is inserted as set forth on
Exhibit A attached hereto.
Article 6 is hereby deleted and a new Article 6 is inserted as set forth on
Exhibit B attached hereto.
* Delete the inapplicable words. **Delete the inapplicable clause.
(1)For amendments adopted pursuant to Chapter 156B, Section 70.
(2)For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate
8-1/2 x 11 sheets of paper with a left margin of at least 1 inch. Additions
to more than one article may be made on a single sheet so long as each article
requiring each addition is clearly indicated.
<PAGE>
Exhibit A
---------
Article 2
- ---------
To acquire, hold, dispose of, buy, sell, and otherwise deal in stocks,
shares, bonds, notes and obligations of and interests in corporations, joint-
stock companies, trusts, associations, partnerships, firms or persons and all
forms of public and municipal securities of this or any other country, or any
right or interest therein, and while owner thereof, to exercise all rights,
powers and privileges of ownership in the same manner and to the same extent
that an individual might.
To engage in, transact and carry on any or all of the above businesses
or any other business or activity necessary or convenient for or incidental to
any or all of the foregoing or which can advantageously be conducted in
connection therewith,and to engage in, transact and carry on any business or
activity which a business corporation organized under the provisions of
Chapter 156B of the General Laws of Massachusetts may lawfully engage in,
transact or conduct.
<PAGE>
Exhibit B
---------
Article 6
- ---------
The directors may make, amend, or repeal the by-laws in whole or in part,
except with respect to any provision thereof which by law or the by-laws
requires action by the stockholders.
Meetings of the stockholders of the Corporation may be held anywhere in
the United States.
This Corporation may become a partner in any general or limited
partnership or in any joint venture or in any other business enterprise
organized for the purpose of accomplishing any of the purposes contained in
the Corporation's Articles of Organization.
To the maximum extent permitted by Massachusetts General Laws, Chapter
156B, as the same exists or may thereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or any of its
stockholders for monetary damages arising out of such director's breach of
fiduciary duty as a director of the Corporation. No amendment to or repeal of
the provisions of this paragraph shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any act or failure to act of such director occurring prior to such
amendment or repeal.
<PAGE>
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such
filing, in which event the amendment will become effective on such later date.
Later effective date: _______________________________.
SIGNED UNDER THE PENALTIES OF PERJURY, this 9th day of April, 1997.
/s/ Marcia L. Moore , Vice President
- -------------------------
/s/ Faye A. Florence , Clerk
- -------------------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
======================================================
I hereby approve the within Articles of Amendment and, the filing fee in
the amount of $_________ having been paid, said articles are deemed to have
been filed with me this ___ day of ____________________________ 19___.
Effective date: ______________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Faye A. Florence, Esq.
c/o Syratech Corporation
175 McClellan Highway
East Boston, MA 02128
BY-LAWS
OF
SYRATECH SECURITY CORPORATION
ARTICLE I
---------
ARTICLES OF ORGANIZATION
------------------------
The name and purposes of the corporation shall be as set forth in the
articles of organization. The articles of organization are hereby made a part of
these by-laws, and the powers of the corporation and of its directors and
stockholders, and all matters concerning the conduct and regulation of the
business of the corporation shall be subject to such provisions in regard
thereto, if any, as are set forth in the articles of organization. In the event
of any inconsistency between the articles of organization and these by-laws, the
articles of organization shall be controlling.
All references in these by-laws to the articles of organization shall be
construed to mean the articles of organization of the corporation as from time
to time amended.
ARTICLE II
----------
STOCKHOLDERS
------------
1. Annual Meeting.
The annual meeting of stockholders shall be held at l0:00 a.m. or at such
other time as the board of directors shall determine, on the second Thursday in
May in each year unless such date is a legal holiday. If such date is a legal
holiday, then the annual meeting shall be held at the same hour on the next
succeeding business day not a legal holiday. The purposes for which an annual
meeting is to be held include those prescribed by law, by the articles of
organization and by these by-laws, and those specified by the president, the
directors, or one or more stockholders who hold in the aggregate at least 10% of
the capital stock entitled to vote on such additional purposes at the meeting.
In the event an annual meeting has not been held on the date fixed in these
by-laws, a special meeting in lieu of the annual meeting may be held with all
the force and effect of an annual meeting.
1
<PAGE>
2. Special Meetings.
A special meeting of stockholders, including a special meeting held in
lieu of the annual meeting, may be called at any time by the president or by the
directors. Upon written application of one or more stockholders who hold in the
aggregate at least 10% of the capital stock entitled to vote at the meeting, a
special meeting shall be called by the clerk, or in case of the death, absence,
incapacity or refusal of the clerk, by any other officer.
3. Place of Meetings.
Meetings of stockholders shall be held in Massachusetts or, to the extent
permitted by the articles of organization, elsewhere in the United States;
provided, however, that special meetings called upon stockholders' application
shall be held in the same county as the principal office of the corporation
unless some other place specified in the application shall be approved by the
directors.
4. Record Date for Purpose of Meetings.
The directors may fix in advance a time not more than sixty (60) days
before the date of any meeting of stockholders as the record date for
determining the stockholders having the right to notice of and to vote at such
meeting and any adjournment thereof. In such case only stockholders of record on
such date shall have the right, notwithstanding any transfer of stock on the
books of the corporation after the record date. Without fixing such record date
the directors may close the transfer books for all or any part of such period.
If no record date is fixed and the transfer books are not closed, the record
date for determining stockholders having the right to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given.
5. Notice of Meetings.
Written notice of the place, day and hour of all meetings of stockholders
stating the purposes for which the meeting is called, shall be given by the
clerk, the assistant clerk or an officer designated by the directors, at least
seven (7) days before the meeting, to each stockholder entitled to vote thereat
and to each stockholder who, under the articles of organization or under the
by-laws, is entitled to such notice, by leaving such notice with him or at his
residence or usual place of business, or by mailing it, postage prepaid, and
addressed to such stockholder at his address as it appears in the books of the
corporation. In case of the death, absence, incapacity or refusal of the clerk,
the assistant clerk or the officer designated by the directors, such notice may
be given by any
2
<PAGE>
other officer or by a person designated either by the clerk or by the person or
persons calling the meeting or by the board of directors. No such notice need be
given to a stockholder, if a written waiver of notice, executed before or after
the meeting by such stockholder or his attorney, thereunto authorized, is filed
with the records of the meeting.
6. Quorum.
At any meeting of the stockholders, a majority in interest of all the
capital stock issued, outstanding and entitled to vote upon a question to be
considered at such meeting shall constitute a quorum for the consideration of
such question, except that, if two or more classes of stock are outstanding and
entitled to vote upon such question as separate classes, then, in the case of
each such class, a quorum shall consist of a majority in interest of the stock
of that class issued, outstanding and entitled to vote upon such question.
Notwithstanding the foregoing, stockholders holding a lesser interest of the
capital stock may adjourn any meeting from time to time, and the meeting may be
held as adjourned without further notice.
7. Voting and Proxies.
Unless otherwise provided by the articles of organization, each
stockholder shall have one vote for each share of stock held by him of record on
the record date and entitled to vote on the question or questions to be
considered at any meeting of the stockholders. Stockholders may vote either in
person or by written proxy dated not more than six months before the meeting
named therein. Proxies shall be filed with the clerk of the meeting, or of any
adjournment thereof, before being voted. Except as otherwise limited therein,
proxies shall entitle the persons named therein to vote at any adjournment of
such meeting but shall not be valid after final adjournment of such meeting. A
proxy with respect to stock held in the name of two or more persons shall be
valid if executed by one of them unless at or prior to exercise of the proxy the
corporation receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a stockholder shall
be deemed valid unless challenged at or prior to its exercise.
8. Action at Meeting.
When a quorum is present for the consideration of a question at any
meeting of the stockholders, a majority in interest of the stock present in
person or by proxy and entitled to vote on such question (or if there are two or
more classes of stock entitled to vote as separate classes, then in the case of
each such class, a majority in interest of the stock of that class present or
represented and entitled to vote on a matter)
3
<PAGE>
shall decide any matter to be voted on by the stockholders, except where a
larger vote is required by law, the articles of organization or these by-laws.
Any election of directors by stockholders shall be determined by a plurality of
the votes cast by the stockholders present in person or by proxy at the meeting
and entitled to vote in the election. No ballet shall be required for such
election unless requested by a stockholder present in person or by proxy at the
meeting and entitled to vote in the election. The corporation shall not directly
or indirectly vote any share of its stock.
9. Action without Meeting.
Any action required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting if all stockholders entitled to vote
on the question consent to the action in writing and the written consents are
filed with the records of the meetings of stockholders. Such consents shall be
treated for all purposes as a vote at a meeting.
ARTICLE III
-----------
DIRECTORS
---------
1. Powers.
The business of the corporation shall be managed by a board of directors
which may exercise all the powers of the corporation except as otherwise
provided by law, by the articles of organization or by these by-laws. In
particular, and without limiting the generality of the foregoing, the directors
may from time to time issue all or any part of the unissued capital stock of the
corporation authorized under the articles of organization, and may determine,
subject to any requirement of law, the consideration for which stock is to be
issued and the manner of allocating such consideration between capital and
surplus. In the event of a vacancy in the board of directors, the remaining
directors, except as otherwise provided by law, may exercise the powers of the
full board until the vacancy is filled.
2. Election and Enlargement of Board.
A board of directors of not less than three, except that whenever there
shall be only two stockholders, of not less than two, and whenever there shall
be only one stockholder or prior to the issuance of any stock, of not less than
one, shall be elected at the annual meeting of the stockholders, or at any
meeting held in place thereof as hereinbefore provided, by such stockholders as
have the right to vote thereon. The stockholders shall at such meeting determine
the number of directors to be elected, but in the absence of affirmative
4
<PAGE>
determination, the number to be elected shall be the same as the number last
previously determined. The board of directors may be enlarged by the
stockholders at any meeting or by vote a majority of the directors then in
office.
3. Vacancies.
Any vacancy in the board of directors, including a vacancy resulting from
the enlargement of the board, may be filled by the stockholders or, in the
absence of stockholder action, by the directors then in office.
4. Tenure.
Except as otherwise provided by law, by the articles of organization or by
these by-laws, each director shall hold office until the next annual meeting of
stockholders or the special meeting in lieu thereof and thereafter until such
director's successor is elected and qualified.
5. Meetings.
Regular meetings of the directors may he held without notice at such
places and at such times as the directors may from time to time determine,
provided that any director who is absent when such determination is made shall
be given notice of the determination. A regular meeting of the directors may be
held immediately following the annual meeting of stockholders, or special
meeting in lieu thereof, at the same place as such stockholders' meeting.
Special meetings of the directors may be held at any time and place
designated in a call by the president, treasurer or two or more directors.
6. Notice of Meetings.
Notice of all special meetings of the directors shall be given to each director
by the clerk, or assistant clerk, or in the case of death, absence, incapacity
or refusal of such persons, by the officer or one of the directors calling the
meeting. Notice shall be given to each director in person or by telephone or by
telegram sent to his usual or last known business or home address at lest
twenty-four hours in advance of the meeting, or by written notice mailed to
either such address at least forty-eight hours in advance of the meeting. Notice
need not be given to any director if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. A notice or waiver of notice of a
directors' meeting need not specify the purposes of the meeting.
5
<PAGE>
7. Quorum.
At any meeting of the directors, a majority of the directors then in
office shall constitute a quorum. Less than a quorum may adjourn any meeting
from time to time without further notice.
8. Action at Meeting.
The vote of a majority of the directors present at any meeting at which a
quorum is present shall be sufficient to decide any question brought before such
meeting, unless a different vote is specified by law, by the articles of
organization, or by these by-laws.
9. Action by Consent.
Any action required or permitted to be taken at any meeting of the
directors may be taken without a meeting if all directors then in office consent
to the action in writing and the written consent is filed with the records of
the directors' meetings. Any such consent shall be treated as a vote of the
directors for all purposes.
10. Committees.
The directors may elect from their number an executive or other committees
and may delegate thereto some or all of their powers except those which they are
prohibited from delegating by Section 55 of Chapter 156B of the Massachusetts
General Laws, as amended, or by any other provision of law or by the articles of
organization or these by-laws. Except as the directors may otherwise determine,
any such committee may make rules for the conduct of its business, but unless
otherwise provided by the directors or in such rules, its business shall be
conducted as nearly as may be in the same manner as is provided by these by-laws
for the directors.
11. Telephone Meetings.
Any or all of the directors may participate in a meeting of the directors
or of a committee thereof by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time; and participation by such means
shall constitute presence in person at any such meeting.
6
<PAGE>
ARTICLE IV
----------
OFFICERS
--------
1. Enumeration.
The officers of the corporation shall consist of a president, a treasurer,
a clerk, and such other officers, if any, including a chairman and a vice
chairman of the board of directors, one or more vice presidents, assistant
treasurers, assistant clerks and a secretary, as the incorporators at their
initial meeting or the directors from time to time may choose or appoint.
2. Election.
The president, treasurer and clerk shall be elected annually by the
directors at their first meeting following the annual meeting of stockholders or
the special meeting in lieu thereof. Other officers may be chosen or appointed
by the directors at such meeting or at any other time.
3. Vacancies.
If any office becomes vacant by reason of death, resignation, removal,
disqualification or otherwise, the directors may choose a successor or
successors, who shall hold office for the unexpired term, except as otherwise
provided by law, by the articles of organization or by these by-laws.
4. Qualification.
The president may, but need not be, a director. No officer need be a
stockholder. Any two or more offices may be held by the same person. The clerk
shall be a resident of Massachusetts unless the corporation shall have appointed
a resident agent for the purpose of service of process. Any officer may be
required by the directors to give bond for the faithful performance of his
duties to the corporation in such amount and with such sureties as the directors
may determine.
5. Tenure.
Except as otherwise provided by law, by the articles of organization or by these
by-laws, the president, treasurer and clerk shall hold office until the fist
meeting of the directors following the annual meeting of stockholders or the
special meeting in lieu thereof, and thereafter until such officer's successor
is chosen and qualified; and all other officers shall hold office until the
first meeting of the directors following the annual meeting of the stockholders
or the special meeting in lieu thereof, unless a shorter term is specified in
the vote choosing or appointing them.
7
<PAGE>
6. Chairman and Vice Chairman of the Board.
A chairman or vice chairman of the board of directors shall have such
powers as the directors may from time to time designate.
7. President and Vice President.
Except as otherwise determined by the directors, the president shall be
the chief executive officer of the corporation and shall, subject to the
direction of the directors, have general supervision and control of its
business. He shall preside, when present, at all meetings of stockholders and of
the directors, unless otherwise provided by the directors.
Any vice president shall have such powers as the directors may from time
to time designate.
8. Treasurer and Assistant Treasurers.
The treasurer shall, subject to the direction of the directors, have
general charge of the financial concerns of the corporation and the care and
custody of the funds and valuable papers of the corporation, except his own
bond, if any, and he shall have the power to endorse for deposit or collection
all notes, checks, drafts, and other obligations for the payment of money
payable to the corporation or its order, and to accept drafts on behalf of the
corporation. He shall keep, or cause to be kept, accurate books of account,
which shall be the property of the corporation.
If required by the board of directors, he shall give bond for the faithful
performance of his duty in such form, in such sum, and with such sureties as the
directors shall require.
Any assistant treasurer shall have such powers as the directors may from
time to time designate.
9. Clerk and Assistant Clerk.
Unless a transfer agent is appointed, the clerk shall keep or cause to be
kept in Massachusetts, at the principal office of the corporation or at his
office, the stock and transfer records of the corporation in which are contained
the names of all stockholders and the record address and the amount of stock
held by each. The clerk shall record all proceedings of the stockholders in a
book to be kept therefor and, in case a secretary is not elected, shall also
record all proceedings of the directors in a book to be kept therefor.
Any assistant clerk shall have such powers as the directors may from time
to time designate. In the absence of the clerk from any meeting of stockholders
or directors, as the case may be, any assistant clerk, or a temporary clerk
8
<PAGE>
designated by the person presiding at such meeting, shall perform the duties
of the clerk.
10. Secretary and Assistant Secretaries.
If a secretary is elected, he shall record all proceedings of the
directors in a book to be kept therefor. Any assistant secretary shall have such
powers as the directors may from time to time designate. In the absence of the
secretary from any meeting of the directors, any assistant secretary, or a
temporary secretary designated by the person presiding at such meeting, shall
record such proceedings.
11. Other Powers and Duties.
Each officer shall, subject to these by-laws, have in addition to the
duties and powers specifically set forth in these by-laws, such duties and
powers as are customarily incident to his office, and such duties and powers as
the directors may from time to time designate.
ARTICLE V
---------
RESIGNATIONS AND REMOVALS
-------------------------
Any director or officer may resign at any time by delivering his
resignation in writing to the president, the treasurer or the clerk or to a
meeting of the directors. Such resignation shall be effective upon receipt
unless specified to be effective at some other time. A director (including
persons elected by directors to fill vacancies in the board) may be removed from
office (a) with or without cause by the vote of the holders of a majority of the
capital stock issued and outstanding and entitled to vote in the election of
directors, provided that the directors of a class elected by a particular class
of stockholders may be removed only by the vote of the holders of a majority of
the shares of such class or (b) for cause by vote of a majority of the directors
then in office. The directors may remove any officer elected by them with or
without cause by the vote of a majority of the directors then in office. A
director or officer may be removed for cause only after reasonable notice and an
opportunity to be heard before the body proposing to remove him. No director or
officer resigning and (except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the corporation)
no director or officer removed, shall have any right to any compensation as such
director or officer for any period following his resignation or removal, or any
right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise, unless in the case of a resignation, the
directors, or in the case of a removal, the body acting on the removal, shall in
their or its discretion provide for compensation.
9
<PAGE>
ARTICLE VI
----------
CAPITAL STOCK
-------------
1. Amount Authorized
The amount of the authorized capital stock and the par value, if any, of
the shares authorized shall be as fixed in the articles of organization.
2. Certificates of Stock.
Each stockholder shall be entitled to a certificate of the capital stock
of the corporation in such form as may be prescribed from time to time by the
directors, unless the board of directors shall provide by resolution that some
or all of any or all classes and series of shares of stock of the corporation
shall be uncertificated shares. Each certificate shall be signed by the
president or a vice president, and by the treasurer or an assistant treasurer,
but when a certificate is countersigned by a transfer agent or a registrar,
other than a director, officer or employee of the corporation, such signatures
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed on such 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 time of its issue.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to the articles of organization, the by-laws or any
agreement to which the corporation is a party shall have the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement of the existence of such
restriction and a statement that the corporation will furnish a copy thereof to
the holder of such certificate upon written request and without charge. Every
certificate issued when the corporation is authorized to issue more than one
class or series of stock shall set forth on its face or back either the full
text of the preferences, voting powers, qualifications and special and relative
rights of the shares of each class and series authorized to be issued or a
statement of the existence of such preferences, powers, qualifications and
rights and a statement that the corporation will furnish a copy thereof to the
holder of such certificate upon written request and without charge.
3. Transfers.
Subject to the restrictions, if any, stated or noted on the stock
certificates, shares of stock may be transferred on the books of the corporation
by the surrender to the corporation
10
<PAGE>
or its transfer agent of the certificate therefor properly endorsed or
accompanied by a written assignment and power of attorney properly executed,
with necessary transfer stamps affixed, and with such proof of the authenticity
of signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the articles of organization or
by these by-laws, the corporation shall be entitled to treat the record holder
of stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote with respect thereto,
regardless of any transfer, pledge or other disposition of such stock, until the
shares have been transferred on the books of the corporation in accordance with
the requirements of these by-laws.
It shall be the duty of each stockholder to notify the corporation of his
post office address and any subsequent changes therein.
4. Record Date for Purposes Other Than Meetings.
The directors may fix in advance a time not more than sixty (60) days
preceding the date for the payment of any dividend or the making of any
distribution to stockholders or the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to receive such dividend or
distribution or the right to express such consent or dissent. In such case only
stockholders of record on such date shall have such right, notwithstanding any
transfer of stock on the books of the corporation after the record date. Without
fixing such record date the directors may for any of such purposes close the
transfer books for all or any part of such period. If no record date is fixed
and the transfer books are not closed, the record date for any such purposes
shall be at the close of business on the day on which the board of directors
acts with respect thereto.
5. Replacement of Certificates.
In case of the alleged loss or destruction or the mutilation of a
certificate of stock, a duplicate certificate may be issued in place thereof,
upon such terms as the directors may prescribe.
ARTICLE VII
-----------
MISCELLANEOUS PROVISIONS
------------------------
1. Fiscal Year.
The fiscal year of the corporation shall end on the date determined from
time to time by the board of directors.
11
<PAGE>
2. Seal.
The seal of the corporation shall, subject to alteration by the directors,
consist of a flat-faced circular die with the word "Massachusetts", together
with the name of the corporation and the year of its organization cut or
engraved thereon.
3. Execution of Instruments.
All deeds, leases, transfers, contracts, bonds, notes and other
obligations authorized to be executed on behalf of the corporation shall be
signed by the president or the treasurer except as the directors may generally
or in particular cases otherwise determine.
4. Voting of Securities.
Except as the directors may otherwise designate, the president or
treasurer may waive notice of, act and appoint any person or persons to act as
proxy or attorney in fact for this corporation (with or without power of
substitution) at any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held by this
corporation.
5. Corporate Records; Inspection of Corporate Records.
The original, or attested copies, of the articles of organization, by-laws
and records of all meetings of incorporators and stockholders, and the stock and
transfer records, containing the names of all stockholders and the record
address and the amount of stock held by each, shall be kept in Massachusetts at
the principal office of the corporation, or at an office of its transfer agent
or of the clerk. Said copies and records need not all be kept in the same
office. They shall be available at all reasonable times to the inspection of any
stockholder for any proper purpose, but not to secure a list of stockholders for
the purpose of selling said list or copies thereof or of using the same for a
purpose other than in the interest of the applicant, as a stockholder, relative
to the affairs of the corporation.
6. Indemnification.
The corporation shall, to the extent legally permissible, indemnify each
of its directors and officers (including persons who serve at its request as
directors, officers, or trustees of another organization in which it has any
interest as a shareholder, creditor or otherwise) against all liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, and counsel fees, reasonably incurred by him in
connection with the defense or disposition of any action, suit or other
proceeding, whether
12
<PAGE>
civil or criminal, in which he may be involved or with which he may be
threatened, while in office or thereafter, by reason of his being or having been
such a director or officer, except with respect to any matter as to which he
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his action was in the best interests of the
corporation. Without limiting the generality of the foregoing, such
indemnification shall include payment by the corporation of expenses incurred by
any director in defending a civil or criminal action or proceeding in advance of
the final disposition of such action or proceeding, upon receipt of an
undertaking by the director indemnified to repay such payment if he shall be
adjudicated to be not entitled to indemnification, which undertaking may be
accepted without reference to the financial ability of such director to make
repayment. Such indemnification may include payment by the corporation of
expenses incurred by any officer in defending a civil or criminal action or
proceeding in advance of the final disposition or proceeding, upon receipt of an
undertaking by the officer indemnified to repay such payment if he shall be
adjudicated to be not entitled to indemnification, which undertaking may be
accepted without reference to the financial ability of such officer to make
repayment. However, as to any such advance payments or as to any matter disposed
of by a compromise payment by such director or officer, pursuant to a consent
decree or otherwise, no indemnification either for said advance payments or
compromise payments or for any other expenses shall be provided unless such
advance payments or compromise payments shall be approved as in the best
interest of the corporation, after notice that it involved such indemnification,
(a) by a disinterested majority of the directors then in office; or (b) by a
majority of the disinterested directors then in office or if there are no
disinterested directors then in office, by a majority of the directors than in
office, provided in either case that there has been obtained an opinion in
writing of independent legal counsel appointed by a majority of such
disinterested directors or a majority of the directors, as the case may be, to
the effect that the indemnification of such director or officer is not
prohibited by law; or (c) by the holders of a majority of the outstanding stock
at the time entitled to vote for directors, voting as a single class, exclusive
of any stock owned by any interested director or officer. The right of
indemnification hereby provided shall not be exclusive of or affect any other
rights to which any director or officer may be entitled; nothing contained in
this section shall affect any rights to indemnification to which corporate
personnel other than directors and officers may be entitled by contract or
otherwise under law. As used in this paragraph, the terms "director" and
"officer" include their respective heirs, executors and administrators, and an
"interested" director or officer is one against whom in such capacity the
proceedings in question or another proceeding on the same or similar grounds is
then pending.
13
<PAGE>
7. Amendments.
These by-laws may at any time be amended by vote of the stockholders,
provided that notice of the substance of the proposed amendment is stated in the
notice of the meeting, or may be amended by vote of a majority of the directors
then in office, except that no amendment may be made by the directors which
changes the date of the annul meeting of stockholders or which alters the
provisions of these by-laws with respect to removal of directors or election of
committees by directors and delegation of powers thereto, or indemnification of
directors and officers, or amendment of these by-laws. No change in the date of
the annual meeting may be made within sixty (60) days before the date fixed in
these by-laws. Not later than the time of giving notice of the meeting of
stockholders next following the making, amending or repealing by the directors
of any by-law, notice thereof stating the substance of such change shall be
given to all stockholders entitled to vote on amending the by-laws.
8. Provisions Relative to Transactions With Interested Persons.
The corporation may enter into contracts and transact business with one or
more if its directors, officers or stockholders or with any corporation,
organization or other concern in which one or more of its directors, officers or
stockholders are directors, officers, stockholders, partners or otherwise
interested; and, in the absence of fraud, no such contract or transaction shall
be invalidated or in any way affected by the fact that such directors, officers
or stockholders of the corporation have or may have interests which are or might
be adverse to the interest of the corporation even though the vote or action of
directors, officers or stockholders having such adverse interest may have been
necessary to obligate the corporation upon such contract or transaction. In the
absence of fraud, no director, officer or stockholder having such adverse
interest shall be liable to the corporation or to any stockholder or creditor
thereof or to any other person for loss incurred by it under or by reason of
such contract or transaction, nor shall any such director, officer or
stockholder be accountable for any gains or profits realized thereon.
14
================================================================================
State of California
[STATE INSIGNIA]
SECRETARY OF STATE
CORPORATION DIVISION
I, BILL JONES, Secretary of State of the State of California, hereby
certify:
That the annexed transcript has been compared with the corporate record on
file in this office, of which it purports to be a copy, and that same is full,
true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
JAN 19 1996
------------------------------------
/s/ Bill Jones
[SEAL]
Secretary of State
================================================================================
<PAGE>
SECRETARY OF STATE
ENDORSED
FILED
In the office of the Secretary of State
of the State of California
JAN 12 1996
/s/ Bill Jones
BILL JONES, Secretary of State
ARTICLES OF INCORPORATION
OF
SYRATECH WEST COAST WAREHOUSE CORP
----------------------------------
I
The name of this corporation is:
SYRATECH WEST COAST WAREHOUSE CORP
II
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The name in the State of California of this corporation's initial
agent for service of process is: Corporation Services Company which will do
business in California as CSC lawyers Incorporating Service
IV
This corporation is authorized to issue only one class of stock; and
the total number of shares which this corporation is authorized to issue is:
1000 At .01 Par Value
Dated: January 12, 1996
/s/ Dan S. Zook
---------------------------------
Dan S. Zook, Incorporator
CORPORATE RECORDS
OF
SYRATECH WEST COAST WAREHOUSE CORP.
*****
INCORPORATED UNDER THE LAWS
OF THE
STATE OF CALIFORNIA
*****
<PAGE>
BY-LAWS
ARTICLE I - OFFICES
1. The principal executive office of the corporation shall be at
2. The corporation may also have offices at such other places as the Board
of Directors may from time to time appoint or the business of the Corporation
may require.
ARTICLE II - SEAL
1. The corporation seal shall have inscribed thereon the name of the
corporation, the date of its organization and the words "Incorporated,
California."
ARTICLE III - SHAREHOLDERS' MEETINGS
1. Meetings of the shareholders shall be held at the principal executive
office of the corporation or at such other place or places, either within or
without the State of California, as may from time to time be selected.
2. The annual meeting of the shareholders shall be held on the 2nd Thurs
of May in each year if not a legal holiday, and if a legal holiday, then on the
next secular day following at 10 o'clock A.M., when they shall elect a Board of
Directors, and transact such other business as may properly be brought before
the meeting.
If there is a failure to hold the annual meeting for a period of 60
days after the date designated therefor, the superior court of the proper county
may summarily order a meeting to be held upon the application of any shareholder
after notice to the corporation giving it an opportunity to be heard. The shares
represented at such meeting, either in person or by proxy, and entitled to vote
thereat shall constitute a quorum for the purpose of such meeting,
notwithstanding any provision of the articles or these by-laws.
<PAGE>
Special meetings of the shareholders may be called by the board, the
chairman of the board, the president or the holders of shares entitled to cast
not less than 10 percent of the votes at the meeting.
3. (a) Whenever shareholders are required or permitted to take any action
at a meeting, a written notice of the meeting shall be given not less than 10
(or if sent by third-class mail, 30) nor more than 60 days before the date of
the meeting to each shareholder entitled to vote thereat. Such notice shall
state the place, date and hour of the meeting and (1) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (2) in the case of the annual meeting, those
matters which the board, at the time of the mailing of the notice, intends to
present for action by the shareholders, but subject to the provisions of
subdivision (f) any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the names of nominees intended at the time of the notice to be presented
by the board for election.
(b) Notice of a shareholders' meeting or any report shall be given
either personally or by first-class mail addressed to the shareholder at the
address of such shareholder appearing on the books of the corporation or given
by the shareholder to the corporation for the purpose of notice; or if no such
address appears or is given, at the place where the principal executive office
of the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which the principal executive office is
located. The notice or report shall be deemed to have been given at the time
when delivered personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any notice or report in
accordance with the provisions of this division, executed by the secretary,
assistant secretary or any transfer agent, shall be prima facie evidence of the
giving of the notice or report.
If any notice or report addressed to the shareholder
<PAGE>
at the address of such shareholder appearing on the books of the corporation is
returned to the corporation by the United States Postal Service marked to
indicate that the United States Postal Service is unable to deliver the notice
or report to the shareholder at such address, all further notices or reports
shall be deemed to have been duly given without further mailing if the same
shall be available for the shareholder upon written demand of the shareholder at
the principal executive office of the corporation for a period of one year from
the date of the giving of the notice or report to all other shareholders.
(c) Upon request in writing to the chairman of the board, president, vice
president, or secretary by any person (other than the board) entitled to call a
special meeting of shareholders, the officer forthwith shall cause notice to be
given to the shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days after the receipt of the request.
(d) When a shareholders' meeting is adjourned to another time or place,
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. 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 45 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 shareholder of
record entitled to vote at the meeting.
(e) The transactions of any meeting of shareholders, however called and
noticed, and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons entitled
to vote, not present in person or by proxy, signs a written waiver of notice or
a consent to the holding of the meeting or an approval of the minutes thereof.
All such waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
<PAGE>
Attendance of a person at a meeting shall constitute a waiver of notice of and
presence at such meeting, except when the person objects at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by this division to
be included in the notice but not so included if such objection is expressly
made at the meeting. Neither the business to be transacted at nor the purpose of
any regular or special meeting of shareholders need be specified in any written
waiver of notice, consent to the holding of the meeting or approval of the
minutes thereof, unless otherwise provided in the articles, except as provided
in subdivision (f).
(f) Any shareholder approval at a meeting, other than unanimous approval
by those entitled to vote, pursuant to section 310, 902, 1201, 1900 or 2007 of
the act shall be valid only if the general nature of the proposal so approved
was stated in the notice of meeting or in any written waiver of notice.
4. Quorum; votes; withdrawal. (a) Unless otherwise provided in the
articles, a majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of the shareholders, but in no
event shall a quorum consist of less than one-third of the shares entitled to
vote at the meeting. Except as provided in subdivision (b), the affirmative vote
of a majority of the shares represented and voting at a duly held meeting at
which a quorum is present (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the shareholders,
unless the vote of a greater number is required by this division or the
articles.
(b) The shareholders present at a duly called or held meeting at
which a quorum is present may continue to transact business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
<PAGE>
(c) In the absence of a quorum, any meeting of shareholders may be
adjourned from time to time by the vote of a majority of the shares represented
either in person or by proxy, but no other business may be transacted, except as
provided in subdivision (b).
5. Actions without meeting; consent; procedure. (a) Unless otherwise
provided in the articles, any action which may be taken at any annual or special
meeting of shareholders may be taken without a meeting and without prior notice,
if a consent in writing, setting forth the action so taken, shall be 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.
(b) Unless the consents of all shareholders entitled to vote have
been solicited in writing.
1. Notice of any shareholders' approval of (a) a contract or
other transaction between the corporation and one or more of its directors or
another corporation, firm or association in which one or more if its directors
has a material financial interest pursuant to Corp. C Sec. 310, (b)
indemnification of an agent of the corporation, pursuant to Corp. C. Sec. 317,
(c) the principal terms of a reorganization pursuant to Corp. C. Sec. 1201, and
(d) a plan of distribution as part of the winding up of the corporation pursuant
to Corp. C. Sec. 2007, without a meeting by less than unanimous written consent,
shall be given at least ten (10) days before the consummation of the action
authorized by such approval.
2. Prompt notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent, to those shareholders entitled to vote who have not
consented in writing.
(c) Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a personal representative of the
shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the
<PAGE>
number of shares required to authorize the proposed action have been filed with
the secretary of the corporation, but may not do so thereafter. Such revocation
is effective upon its receipt by the secretary of the corporation.
(d) Directors may not be elected by written consent except by
unanimous consent of all shares entitled to vote for the election of directors.
6. Proxies; contents; form. (a) Any form of proxy or written consent
distributed to 10 or more shareholders of a corporation with outstanding shares
held of record by 100 or more persons shall afford an opportunity on the proxy
or form of written consent to specify a choice between approval and disapproval
of each matter or group of related matters intended to be acted upon at the
meeting for which the proxy is solicited or by such written consent, other than
elections to office, and shall provide, subject to reasonable specified
conditions, that where the person solicited specifies a choice with respect to
any such matter the shares will be voted in accordance therewith.
(b) In any election of directors, any form of proxy in which the
directors to be voted upon are named therein as candidates and which is marked
by a shareholder "withhold" or otherwise marked in a manner indicating that the
authority to vote for the election of directors is withheld shall not be voted
for the election of a director.
ARTICLE IV - VOTING AND PROXIES
1. One share, one vote; voting shares of on individual. (a) Except as may
be otherwise provided in the articles, each outstanding share, regardless of
class shall be entitled to one vote on each matter submitted to a vote of
shareholders except with regard to cumulative voting in elections of directors.
(b) Any holder of shares entitled to vote on any matter may vote
part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal other than elections to
office, but, if the shareholder fails to specify the number of shares such
shareholder is voting affirmatively,
<PAGE>
it will be conclusively presumed that the shareholder's approving vote is with
respect to all shares such shareholder is entitled to vote.
2. Ownership of shares; record date. (a) In order that the corporation may
determine the shareholders entitled to notice of any meeting or to vote 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 other lawful
action, the board may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days prior to the date of such meeting nor more than 60
days prior to any other action.
(b) If no record date is fixed:
1. 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 business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held.
2. The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, when no prior
action by the board has been taken, shall be the day on which the first written
consent is given.
3. The record of date for determining shareholders for any
other purpose shall be at the close of business on the day on which the board
adopts the resolution relating thereto, or the 60th day prior to the date of
such other action, whichever is later.
(c) 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 unless the board fixes a new record date for the adjourned meeting, but
the board shall fix a new record date if the meeting is adjourned for more than
45 days from the date set for the original meeting.
(d) Shareholders at the close of business on the record date are
entitled to notice and to vote or to receive the dividend, distribution of
allotment of rights or to exercise the rights, as
<PAGE>
the case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the articles
or by agreement or in this division.
3. Shares held by two or more persons. (a) If shares stand of record in
the names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, husband and wife as community property,
tenants by the entirely, voting trustees, persons entitled to vote under a
shareholder voting agreement or otherwise, or if two or more persons (including
proxyholders) have the same fiduciary relationship respecting the same shares,
unless the secretary of the corporation is given written notice to the contrary
and is furnished with a copy of the instrument or order appointing them or
creating the relationship wherein it is so provided, their acts with respect to
voting shall have the following effect:
1. If only one votes, such act binds all;
2. If more than one vote, the act of the majority so voting binds
all;
3. If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately.
If the instrument so filed or the registration of the shares
shows that any such tenancy is held in unequal interests, a majority or even
split for the purpose of this section shall be a majority or even split in
interest.
4. Proxies; validity; expiration; revocation. (a) Every person entitled to
vote shares may authorize another person or persons to act by proxy with respect
to such shares. Any proxy purporting to be executed in accordance with the
provisions of this division shall be presumptively valid.
(b) No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy. Every proxy continues
in full force and effect until revoked by the person executing it prior to the
vote pursuant thereto, except
<PAGE>
as otherwise provided in this section. Such revocation may be effected by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by the person executing the prior proxy and presented
to the meeting or as to any meeting by attendance at such meeting and voting in
person by the person executing the proxy. The dates contained on the forms of
proxy presumptively determine the order of execution, regardless of the postmark
dates on the envelopes in which they are mailed.
(c) A proxy is not revoked by the death or incapacity of the maker
unless, before the vote is counted, written notice of such death or incapacity
is received by the corporation.
(d) Except when other provision shall have been made by written
agreement between the parties, the recordholder of shares which such person
holds as pledgee or otherwise as security or which belong to another shall issue
to the pledgor or to the owner of such shares, upon demand therefor and payment
of necessary expenses thereof, a proxy to vote or take other action thereon.
(e) A proxy which states that it is irrevocable is irrevocable for
the period specified therein (notwithstanding subdivision (c) when it is held by
any of the following or a nominee of any of the following:
1. A pledgee;
2. A person who has purchased or agreed to purchase or holds
an option to purchase the shares or a person who has sold a portion of such
person's shares in the corporation to the maker of the proxy;
3. A creditor or creditors of the corporation or the
shareholder who extended or continued credit to the corporation or the
shareholder in consideration of the proxy if the proxy states that it was given
in consideration of such extension or continuation of credit and the name of the
person extending or continuing credit;
4. A person who has contracted to perform services as an
employee of the corporation, if a proxy is required by the contract of
employment and if the proxy states that it was given
<PAGE>
in consideration of such contract of employment, the name of the employee and
the period of employment contracted for: or
5. A beneficiary of a trust with respect to shares held by the
trust. Notwithstanding the period of irrevocability specified, the proxy becomes
revocable when the pledge is redeemed, the option or agreement to purchase is
terminated or the seller no longer owns any shares of the corporation or dies,
the debt of the corporation or the shareholder is paid, the period of employment
provided for in the contract of employment has terminated or the person ceases
to be a beneficiary of the trust. In addition to the foregoing clauses 1.
through 4., a proxy may be made irrevocable (notwithstanding subdivision (c) if
it is given to secure the performance of a duty or to protect a title, either
legal or equitable, until the happening of events which, by its terms, discharge
the obligations secured by it.
(f) A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a transferee of shares without knowledge of the existence of the
provision unless the existence of the proxy and its irrevocability appears on
the certificate representing such shares.
5. Inspectors of elections. (a) In advance of any meeting of shareholders
the board may appoint inspectors of election to act at the meeting and any
adjournment thereof, If inspectors of election are not so appointed, or if any
persons so appointed fail to appear or refuse to act, the chairman of any
meeting of the shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election( or persons to replace
those who so fail or refuse) at the meeting. The number of inspectors shall be
either one or three. If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in person or by
proxy shall determine whether one or three inspectors are to be appointed.
(b) The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum and
<PAGE>
the authenticity, validity and effect of proxies, receive votes, ballots or
consents, hear and determine all challenges and questions in any way arising in
connection with the right to vote, count and tabulate all votes or consents,
determine when the polls shall close, determine the result and do such acts as
may be proper to conduct the election or vote with fairness to all shareholders.
(c) The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
6. Directors, cumulative voting for; election by ballot. (a) Every
shareholder complying with subdivision (b) and entitled to vote at any election
of directors may cumulate such shareholder's votes and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which the shareholder's shares are normally entitled or
distribute the shareholder's votes on the same principle among as many
candidates as the shareholder thinks fit.
(b) No shareholder shall be entitled to cumulate votes (i.e., cast
for any candidate a number of votes greater than the number of votes which such
shareholder normally is entitled to cast) unless such candidate or candidates'
names have been placed in nomination prior to voting and the shareholder has
given notice at the meeting prior to the voting of the shareholder's intention
to cumulate the shareholder's votes. If any one shareholder has given such
notice, all shareholders may cumulate their votes for candidates in nomination.
(c) In any election of directors, the candidates receiving the
highest number of affirmative votes of the shares entitled to be voted for them
up to the number of directors to be elected by such shares are elected; votes
against the director and votes withheld shall have no legal effect.
(d) Elections for directors need not be by ballot unless shareholder
demands election by ballot at the meeting and before the voting begins or unless
the bylaws so require.
<PAGE>
ARTICLE V - DIRECTORS AND OTHER OFFICERS
The business of this corporation shall be managed by its Board of
Directors, _______ in number. Whenever all of the shares of the corporation are
owned beneficially and of record by either one or two shareholders, the number
of directors may be less than three but not less than the number of
shareholders. Whenever there are three or more shareholders, there must be at
least three directors.
1. Powers of the board; delegation; close corporations. (a) Subject to the
provisions of this division and any limitations in the articles relating to
action required to be approved by the shareholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board. The board may
delegate the management of the day-to-day operation of the business of the
corporation to a management company or other person provided that the business
and affairs of the corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the board.
2. Directors; election; term. (a) At each annual meeting of shareholders,
directors shall be elected to hold office until the next annual meeting
(b) Each director, including a director elected to fill a vacancy, shall
hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
3. Directors; removal with cause. (a) The board may declare vacant the
office of a director who has been declared of unsound mind by an order of court
or convicted of a felony.
4. Directors; removal without cause. (a) Any or all of the directors may
be removed without cause if such removal is approved by a majority of the
outstanding shares subject to the following:
1. No director may be removed (unless the entire board is removed)
when the votes cast against removal, or not consenting in writing to such
removal, would be sufficient to elect such director if voted cumulatively at an
election at which the same total number of votes were cast (or, if such action
is taken
<PAGE>
by written consent all shares entitled to vote were voted) and the entire number
of directors authorized at the time of the director's most recent election were
then being elected.
(b) Any reduction of the authorized number of directors does not
remove any director prior to the expiration of such directors's term of office.
(c) A director may not be removed prior to the expiration of such
director's term of office except that any director who has been declared of
unsound mind by an order of the court or convicted of a felony or removed by the
Superior Court of the proper county at the suit of shareholders holding at least
10% of the number of outstanding shares in the case of fraudulent or dishonest
acts.
5. Meetings of directors. (a) Unless othewise provided in the articles:
1. Meetings of the board may be called by the chairman of the board
or the president or any vice president or the secretary or any two directors
2. Regular meetings of the board may be held without notice if the
time and place of such meetings are fixed by the bylaws or the board. Special
meetings of the board shall be held upon four days' notice by mail or 48 hours'
notice delivered personally or by telephone or telegraph. The articles or bylaws
may not dispense with notice of a special meeting. A notice, or waiver of
notice, need not specify the purpose of any regular or special meeting of the
board.
3. Notice of a meeting need not be given to any director who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before of after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
such director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
4. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than 24 hours, notice of any adjournment to another time or
place shall be given prior to
<PAGE>
the time of the adjourned meeting to the directors who were not present at the
time of the adjournment.
5. Meetings of the board may be held at any place within or without
the state which has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, designated in the bylaws or by
resolution of the board.
6. Members of the board may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a meeting
pursuant to this subdivision constitutes presence in person at such meeting.
7. A majority of the authorized number of directors constitutes a
quorum of the board for the transaction of business. The articles or bylaws may
not provide that a quorum shall be less than one-third the authorized number of
directors or less than two, whichever is larger, unless the authorized number of
directors is one, in which case one director constitutes a quorum.
8. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present is the act of the
board. A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting.
(b) Any action required or permitted to be taken by the board may be
taken without a meeting, if all members of the board shall individually or
collectively consent in writing to such action. Such written consent or consents
shall be filed with the minutes of the proceedings of the board. Such action by
written consent shall have the same force and effect as a unanimous vote of such
directors.
(c) The provisions of this section apply also to committees of the
board and incorporators and action by such committees and incorporators, mutatis
mutandis.
6. Executive Committee. The board may, by resolution adopted by a majority
of the authorized number of directors, designate one or more committees, each
consisting of two or more directors,
<PAGE>
to serve at the pleasure of the board. The board may replace any absent member
at any meeting of the committee. The appointment of members or alternate members
of a committee requires the vote of a majority of the authorized number of
directors. Any such committee, to the extent provided in the resolution of the
board or in the bylaws, shall have the authority of the board, except with
respect to:
(a) The approval of any action for which this division also requires
shareholders' approval or approval of the outstanding shares.
(b) The filling of vacancies on the board or in any committee.
(c) The fixing of compensation of the directors for serving on the
board or on any committee.
(d) The amendment or repeal of bylaws or the adoption of new bylaws.
(e) The amendment or repeal of any resolution of the board which by
its express terms is not so amendable or repealable.
(f) A distribution to the shareholders of the corporation, except at
a rate or in a periodic amount or within a price range determined by the board.
(g) The appointment of other committees of the board or the members
thereof.
7. President, Vice President, Secretary, Treasurer and other officers. (a)
A corporation shall have a chairman of the board or a president or both, a
secretary, a chief financial officer and such other officers with such titles
and duties as shall be stated in these bylaws or determined by the board and as
may be necessary to enable it to sign instruments and share certificates. The
president, or if there is no president the chairman of the board, is the general
manager and chief executive officer of the corporation, unless otherwise
provided in the articles. Any number of offices may be held by the same person
unless the articles provide otherwise.
(b) Except as otherwise provided by the articles,
<PAGE>
officers shall be chosen by the board and serve at the pleasure of the board,
subject to the rights, if any, of an officer under contract of employment. Any
officer may resign at any time upon written notice to the corporation without
prejudice to the rights, if any, of the corporation under any contract to which
the officer is a party.
8. Liability of Directors and Officers. (a) A director shall perform the
duties of a director, including the duties as a member of any committee of the
board upon which the director may serve, in good faith, in a manner such
director believes to be in the best interests of the corporation and with such
care, including reasonable inquiry, as an ordinarily prudent person in a like
position would use under similar circumstances.
(b) In performing the duties of a director, a director shall be
entitled to rely on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by:
1. One or more officers or employees of the corporation whom
the director believes to be reliable and competent in the matters presented,
2. Counsel, independent accountants or other persons as to
matters which the director believes to be within person's professional or expert
competence, or
3. A committee of the board upon which the director does not
serve, as to matters within its designated authority, which committee the
director believes to merit confidence, so long as, in any such case, the
director acts in good faith, after reasonable inquiry when the need therefor is
indicated by the circumstances and without knowledge that would cause such
reliance to be unwarranted.
(c) A person who performs the duties of a director in accordance
with subdivisions (a) and (b) shall have no liability based upon any alleged
failure to discharge the person's obligations as a director.
(d) A director who is present at a meeting of the board, or any
committee thereof, at which action specified in subdivision (a) is taken and who
abstains from voting shall be considered to have
<PAGE>
approved the action.
9. Vacancies. (a) Unless otherwise provided in the articles and except for
a vacancy created by the removal of a director, vacancies on the board may be
filled by a majority of the directors then in office, whether or not less than a
quorum or by a sole remaining director. Unless the articles provide that the
board may fill vacancies occurring on the board by reason of the removal of
directors, such vacancies may be filled only by approval of the shareholders.
(b) The shareholders may elect a director at any time to fill any
vacancy not filled by the directors. Any such election by written consent other
than to fill a vacancy created by removal requires the consent of a majority of
the outstanding shares entitled to vote.
(c) If after the filling of any vacancy by the directors, the
directors then in office who have been elected by the shareholders shall
constitute less than a majority of the directors then in office.
1. Any holder or holders of an aggregate of 5 percent or more
of the total number of shares at the time outstanding having the right to vote
for such directors may call a special meeting of shareholders.
2. Any director may resign effective upon giving written
notice to the chairman of the board, the president, the secretary or the board
of directors of the corporation, unless the notice specifies a later time for
the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
ARTICLE VI - MISCELLANEOUS PROVISIONS
1. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers as the board of directors may from time to
time designate.
2. The fiscal year of the corporation shall begin on the first day of
3. Any payments made to an officer or employee of the
<PAGE>
corporation such as a salary, commission, bonus, interest, rent, travel or
entertainment expense incurred by him, wich shall be disallowed in whole or in
part as a deductible expense by the Internal Revenue Service, shall be
reimbursed by such officer or employee to the corporation to the full 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 or
employee, 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 VII - ANNUAL STATEMENT
1. The president and board of directors shall present at each annual
meeting a full and complete statement of the business and affairs of the
corporation for the preceding year. Such statement shall be prepared and
presented in whatever manner the board of directors shall deem advisable and
need not be verified by a certified public accountant.
ARTICLE VIII - AMENDMENTS
1. By-laws may be adopted, amended or repealed either by affirmative vote
of the holders, a majority of the outstanding shares entitled to vote or by the
board. A by-law changing the number of directors must be approved by the
shareholders.
OFFICE OF THE CLERK RECEIVED RECORDING
CITY HALL APR 10 1995 OF DEEDS
BOSTON MA 02201 SECRETARY OF THE COMMONWEALTH APR 10 1995
APR 10 1995 CORPORATIONS DIVISION 12H 16M PM
RECEIVED FOR RECORD
FEE ___________
DECLARATION OF TRUST ESTABLISHING
REALTY TRUST
This DECLARATION OF TRUST is made at East Boston, Massachusetts,
this 10th day of April, 1995, by FAYE A. FLORENCE of Apartment 17D, 770 Boylston
Street, Boston, Massachusetts 02199, LEONARD FLORENCE of 99 Lyman Road, Chestnut
Hill, Massachusetts 02167 and E. MERLE RANDOLPH of 24 Boren Lane, Boxford,
Massachusetts 01921.
ARTICLE I
BUSINESS NAME AND PRINCIPAL
OFFICE OF TRUSTEES
---------------------------
1. The name of the Trust created hereby shall be "175 AMLEGION
REVERE REALTY TRUST," which name shall refer to the Trustees collectively as
Trustees, but not as individuals or personally; and in which name they may, as
hereinafter provided and as Trustees and not as individuals, make and execute
contracts and all kinds of instruments, conduct business, acquire and convey
real or personal property and sue and be sued.
2. The principal office of the Trustees shall be at 175 McClellan
Highway, East Boston, Massachusetts 02128-9114 or at such other place as the
Trustees may from time to time designate.
ARTICLE II
DEFINITIONS
-----------
In this instrument wherever the context permits, the following words
shall have respectively the following meanings:
1. "Trustee" or "Trustees" shall mean a Trustee or Trustees for the
time being under this Declaration however appointed.
2. "Shareholder" or "shareholders" shall mean a person or persons
for the time being a holder or holders of record on the books of the Trust of
transferable shares in the Trust hereby created.
3. "Trust estate" shall mean any and all property, whether real,
personal or mixed, held by the Trustees under the terms and provisions of this
Declaration.
<PAGE>
2
4. "Person" or "persons" shall mean any person or persons whether
acting in an individual, representative or fiduciary capacity, and in any firm
or firms, corporation or corporations, partnership or partnerships, business
trust or business trusts, so-called, and any legal entity or entities
whatsoever.
5. "Majority vote" shall mean a vote by a majority of the number of
shares of this Trust then outstanding hereunder and entitled to vote.
ARTICLE III
PURPOSES
--------
The Trust is established for the purpose of investing and
reinvesting in, and the purchase, improvement, development, holding and
management of, real and/or personal property of every kind and nature, and for
the purpose of enabling the Trustees to hold and manage the trust estate. All
property now held or hereafter acquired by the Trustees or any of them or their
successors in their capacities as Trustees hereunder, and all income and profits
therefrom, shall be held by them in trust and shall be by them managed,
administered, received, collected, disbursed, disposed of or distributed for the
benefit of the shareholders in the manner herein provided and subject to the
terms and conditions set forth in this Declaration and any amendments thereto.
It is expressly declared that there is hereby created a trust of the type
commonly known as a business trust, and not a partnership or a joint venture or
joint stock association.
ARTICLE IV
TRUSTEES: NUMBER, TERM OF OFFICE,
ELECTION AND RELATED MATTERS
---------------------------------
1. The Trustees hereunder shall be three (3) in number until a
different number shall be fixed by the shareholders as herein provided. At any
annual meeting of the shareholders, or at any special meeting of the
shareholders called for the purpose, such number may be at any time and from
time to time increased to such number as may be fixed by majority vote, and at
any such meeting such number of Trustees, if then greater than three (3), may be
reduced by a similar vote to any number not less than three (3).
2. The Trustees herein named shall hold office until the first
annual meeting of the shareholders, and every Trustee hereafter elected shall
hold office until the annual meeting of the shareholders next succeeding his
election; and in either case, each such Trustee shall con-
<PAGE>
3
tinue in office after any such annual meeting until his respective successor has
been duly elected and has qualified as hereinafter provided.
3. At each annual meeting of the shareholders they may, by a
majority vote, a quorum being present, elect Trustees for the ensuing year of
such number as may be then fixed as hereinbefore provided, and any one or more
of the Trustees previously in office may be re-elected. At any special meeting
at which the number of Trustees is increased as hereinbefore provided, the
shareholders may by majority vote, a quorum being present, elect the additional
Trustees so provided for.
4. In the event of a vacancy or vacancies in the office of Trustees,
for any reason whatsoever, the remaining Trustee or Trustees shall appoint a
successor or successors to fill such vacancy or vacancies and to serve until the
next annual meeting of the shareholders; provided, however, that until such
successor or successors shall have been appointed as aforesaid and shall have
qualified as hereinafter provided, the remaining Trustees or Trustee, if there
is only one, shall have and may exercise all of the powers of the Trustees
hereunder. In the event that, for any reason whatsoever, there shall be no
remaining Trustee acting hereunder, the shareholders may, at a meeting called
for the purpose, by majority vote, appoint successor Trustees.
5. Every Trustee elected by the shareholders or appointed to fill a
vacancy by the Trustees as hereinabove provided shall be required, except in
case of re-election, to qualify as such Trustee by signing, sealing,
acknowledging and depositing with the Secretary of the Trust, within twenty (20)
days after his election, a written statement containing a declaration of his
acceptance of such office and of the trusts, duties and obligations imposed upon
him as such Trustee hereunder. In the event of the failure of any person so
elected to qualify in the manner herein provided, then the election of such
person shall be null and void and the vacancy thereby created shall be filled by
the Trustees as in paragraph 4 of this Article provided.
6. Any Trustee may be removed during his term at any regular meeting
of the Trustees or any meeting specially called for that purpose, by vote of a
majority of all the Trustees, for any cause by them deemed sufficient.
7. Any Trustee may resign his trust at any time by written
instrument, signed and acknowledged by him in the manner appropriate for
acknowledgment of deeds in Massachusetts and delivered to the President,
Secretary, or to any other Trustee.
<PAGE>
4
8. Whenever any change in Trustees takes place hereunder for any
reason whatsoever, the title to the entire trust estate as previously vested in
the former Trustees shall immediately vest in the Trustees holding office as a
result of such change, without any conveyance from any outgoing Trustee or from
the heirs, executors or administrators of any deceased Trustee, or from the
continuing Trustees or any of them; but notwithstanding this provision, it shall
be the duty of each outgoing Trustee, and the legal representative or
representatives of any deceased Trustee or of any Trustee who may have become
incompetent, and of each continuing Trustee, to execute, acknowledge and deliver
such instruments of conveyance as shall be deemed by the Trustees advisable and
appropriate for the purpose of confirming the title vested as aforesaid in the
Trustees then holding office.
9. Any instrument signed or action taken by any one (1) of the
Trustees then in office shall be conclusive and binding as if taken or signed by
all of the Trustees, except that any certificate signed in accordance with the
provisions of paragraph 3 of Article XI hereof shall have the same effect as if
signed by all the Trustees, and except further that any check or other
instrument signed by the Treasurer as provided in Paragraph 3 of Article VII
hereof, or any check or other instrument signed by any other person or persons
to whom such power may have been delegated under the provisions of Paragraph 12
of Article V and Paragraph 1 of Article VII, or any action taken by any agent,
manager or assistant appointed under and acting pursuant to the provisions of
Paragraph 11 of Article V hereof, shall have the same effect as if signed or
taken by all the Trustees.
10. The Trustees shall, at the annual meeting of the shareholders,
make a financial report to the shareholders for the fiscal year next preceding.
11. The Trustees may receive such compensation, regular or special,
as they shall determine to be reasonable and proper.
ARTICLE V
TRUSTEES' POWERS
----------------
The Trustees shall hold the legal title to the trust estate and
shall have full power to deal therewith as if they were the beneficial owners
thereof, free from any control or dominion by the shareholders; and without in
any way limiting the generality of the foregoing, the Trustees shall have the
following powers, and such additional powers as may be incidental thereto:
<PAGE>
5
1. To purchase, or to take under lease, own, maintain, acquire,
develop, and improve real or personal property or any interest or rights therein
without limit as to kind or amount, and to sell, convey, exchange, or otherwise
dispose of the same free and discharged of all trusts hereunder.
2. To construct, alter, maintain, repair, demolish, rebuild and
improve buildings, whether on land of the Trustees or upon other lands; and to
convert and appropriate any such lands into, and build and form, roads, streets
and all other conveniences.
3. To make such agreements with owners of adjoining property in
regard to easements of every sort and description, boundary lines, party walls
or other like subjects of agreement as they may deem necessary or convenient for
the purposes hereof; and to register or confirm in the Land Court of the
Commonwealth of Massachusetts title to any real property in the trust estate.
4. To lease, or to let to tenants at will, upon such terms and
conditions and with such stipulations and agreements as they may deem desirable,
any part or parts of the trust estate, and to accept surrenders of leases and
tenancies; and otherwise to deal in leases in any manner which the Trustees may
deem expedient or desirable, including without limitation the power to assign,
take assignments of, amend, terminate, renew and extend existing or future
leases.
5. To borrow money in such amount and in such manner as they deem
advisable, and to issue notes and other obligations therefor, and, if they shall
so determine, to secure the payment thereof by mortgage (including purchase
money mortgage) or pledge of any part or parts of the trust estate, binding
however the trust estate only and not the Trustees or the shareholders
individually.
6. To refund, discharge and pay off or renew, replace or extend any
mortgage, pledge or charge now or in the future existing upon the trust estate
or any part thereof; and to assign, extend, discharge and give partial releases
from any mortgage which may be a part of the trust estate; and otherwise to deal
in mortgages in any manner which the Trustees may deem expedient or desirable.
7. To lend money to any person, and on such terms, with or without
security, as the Trustees shall determine.
8. To make any compositions or arrangements with tenants, creditors
or debtors, and to compromise and settle any claims, damages and judgments in
favor of the Trustees
<PAGE>
6
or against the Trustees or the trust estate, in such amounts, and upon such
terms or conditions as the Trustees shall in their sole discretion determine,
and to make or receive payment therefor, as the case may be; to institute or
defend against any proceedings at law or in equity; to enforce or maintain any
rights in respect to the trust estate; and to submit any dispute to arbitration.
9. To declare dividends pursuant to the provisions of Article X
hereof; and from time to time, for such consideration and upon such terms and
conditions as the Trustees shall in their sole discretion determine, to issue,
sell and exchange, pursuant to the provisions of Article VIII of this Trust, and
to purchase and redeem, shares of this Trust.
10. To exercise any and all powers and rights as holder of any
stocks, shares, bonds, securities or obligations forming a part of the trust
estate to the same extent that any individual holder thereof could exercise the
same.
11. To employ or consult engineers, brokers, accountants,
architects, auctioneers, attorneys, or specialists in any field of endeavor
whatsoever, whether or not disinterested, and whether or not Trustees, agents or
representatives of this Trust, and to determine whether or not to act on the
advice of any such person; to employ such managers, agents or other assistants
as they shall think proper for the conduct of the business of the Trust, and to
delegate to any such person such duties, responsibilities and powers as they in
their discretion deem advisable; and to fix the compensation, in such amounts as
the Trustees shall determine, for the services for any person so employed or
consulted.
12. To delegate to and among any one or more of themselves such of
their powers or duties hereunder as they shall in their sole discretion
determine; and to appoint officers as in Article VII provided, and a writing
signed as in paragraph 3 of Article XI provided shall be sufficient evidence of
such delegation or appointment.
13. To execute, seal, acknowledge and deliver deeds, releases,
agreements and all other instruments whatsoever which the Trustees deem
expedient in implementing the purposes of this Trust.
14. To pay out any money which the Trustees deem expedient or proper
in connection with the administration of the trust estate.
15. To allow or cause, notwithstanding any other provisions of
Article V hereof, any property, whether real or personal, to be transferred into
the name or names of any
<PAGE>
7
one or more of them, or into the name or names of any nominee or other person
designated by them, and to allow any such property to remain in such names for
so long as they in their sole discretion may determine, and the same may be done
in such manner as not to give notice that such property is affected by any
trust.
16. To deposit any funds of this Trust in any bank or trust company,
and entrust to such bank or trust company, or to a safe deposit company for
safekeeping, any of the securities, monies, documents and papers belonging to or
relating to the trust estate; and in addition to the powers given to the
Treasurer as hereinafter provided to delegate to any one or more of their number
or to any other person or persons, as they may determine, the power to deposit,
withdraw, and draw checks on any funds of the Trust.
17. To give money or property of the Trust, including shares of this
Trust, to or for such charitable purposes or objects and in such amounts as they
may in their discretion determine.
18. To invest and reinvest the money and assets of the trust estate
in such manner as they may from time to time in their sole discretion determine,
and to establish contingent or sinking funds, or both; and for such purposes to
set aside periodically from the income of the Trust such money as they in their
discretion may deem proper, and to invest and reinvest such funds.
19. To determine in their sole discretion whether receipts by them
shall constitute principal or income, and to allocate between principal and
income any of the funds of the Trust, and to determine whether expenses or other
payments shall be allocated to principal or income.
20. To enter into and execute mortgages, leases, contracts and any
other obligations, instruments or undertakings which may bind the Trustees and
the trust estate for periods of time extending beyond the possible duration of
this Trust.
21. To construe any of the provisions of this Declaration of Trust,
and to act on any such construction, and their construction of the same and any
action taken in good faith pursuant thereto shall be final and conclusive on all
parties in interest.
<PAGE>
8
ARTICLE VI
RESPONSIBILITY AND RIGHTS OF TRUSTEES
-------------------------------------
1. No Trustee shall be liable for any act or default whatsoever of
any other Trustee or of any agent, employee or representative of the Trustees;
nor shall any Trustee be liable for any error of judgment, or for anything done
or omitted by him in good faith; and each Trustee shall be answerable and
accountable only for his own individual receipts, and for his own individual
receipts, and for his own willful acts, neglects and defaults constituting a
breach of trust knowingly committed by him in bad faith.
2. Unless expressly required by vote of the Trustees, no Trustee
shall be required to give any bond or surety to secure his performance as
Trustee hereunder.
3. The Trustees, and each of them, and each agent, employee or
representative of the Trustees shall be entitled to reimbursement out of the
trust estate for their or his reasonable expenses and outlays and shall be
indemnified and reimbursed for any personal liability, loss, costs, expense or
damage by then or him incurred or suffered in the administration of the trust
estate or in conducting any business or performing any act authorized or
permitted by this Declaration of Trust or any amendment thereto, but such
indemnity or reimbursement shall be limited to the trust estate, and no
shareholder shall be personally or individually liable therefor to any extent.
ARTICLE VII
OFFICERS
--------
1. The Trustees shall from time to time appoint from within their
number a President, a Treasurer and a Secretary, and such other officers as they
may deem proper from within or without their number, and may permit any officer
so appointed to resign and may remove any such officer for any cause by the
Trustees deemed sufficient; and they may fill any vacancy and appoint temporary
officers to serve during the absence or disability of the regular officers or
for any specific purpose. Every officer so appointed, unless otherwise
determined by the Trustees, shall hold his office until the first meeting of the
Trustees following the next succeeding annual meeting of the shareholders and
thereafter until his successor has been chosen. Such officers shall receive such
compensation, if any, as may from time to time be fixed by the Trustees and they
shall have respectively, in addition to the powers and duties conferred and
imposed upon them by the express provisions of this Declaration of Trust, such
further power and
<PAGE>
9
duties as may be conferred and imposed upon them or delegated to them from time
to time by the Trustees.
2. The President, if present, shall preside at all meetings of the
Trustees and of the shareholders and in his absence a Temporary Chairman shall
be chosen by the meeting. He shall, with the Treasurer, sign all certificates
for shares of the Trust.
3. The Treasurer shall keep accurate books of all the financial
transactions of the Trust. If required by the Trustees, the Treasurer shall give
bond for the faithful discharge of his duties and the premium on such bond shall
be paid out of the trust estate. He shall deposit all funds of the Trust in such
depositaries as may be selected by the Trustees, pay all its bills, collect all
monies due to the Trust, and with the President sign all certificates for shares
of the Trust. He may withdraw all sums on deposit with such depositaries, sign
all checks or other writings in connection therewith, sign, execute, acknowledge
and deliver in the name of the Trustees all authorized deeds, mortgages, bonds,
contracts, leases and promissory notes and drafts, or other writings evidencing
indebtedness of the Trustees, except in cases where the signing and execution
thereof shall have been expressly delegated by the Trustees to some other
Trustee, officer, agent or representative of the Trust.
4. The Secretary shall attend all meetings of the Trustees and of
the shareholders, shall give notice of all such meetings as required by the
provisions hereof, and shall keep the minutes of all such meetings; and in his
absence from any meeting a Temporary Secretary shall be chosen by the meeting to
act in his place.
ARTICLE VIII
SHARES AND SHAREHOLDERS
-----------------------
1. The beneficial interest in the trust estate shall be in the
holders from time to time of transferable shares, and shall consist of One
Thousand (1,000) common shares, each having a par value of One Dollar ($1.00).
2. This Declaration may be amended from time to time in the manner
provided in Article XIII to authorize shares in addition to those originally
authorized. All such additional shares may be of any class or series of
preferred or common shares, with or without par value, and ranking pari passu
with any class or series of shares previously issued, or having, as compared
with any class or series of shares previously issued, any preferences,
conversion or other special privileges or advantages, or any deferred or
restricted rights whatsoever.
<PAGE>
10
3. Authorized shares of the Trust may be issued from time to time in
such amounts as the Trustees may determine, either for cash, services,
securities, property or other value, or by way of stock dividend or in exchange
for other shares of this Trust at the time outstanding, as full-paid or
part-paid shares, and at such price and upon such terms as to valuation of
services, securities, property or other value or other shares, or otherwise, as
the Trustees may in their absolute discretion see fit and irrespective of the
par value thereof, if any. No holder of shares of any class and no holder of
other securities of this Trust shall, as such, have any preemptive or
preferential right of subscription to or purchase of any securities of this
Trust, except that additional shares authorized by amendment of the Declaration
of Trust shall be offered to existing shareholders unless otherwise stated in
such amendment. The Trustees may determine what part, if any, of the
consideration received upon the issuance of any shares shall constitute paid-in
surplus and the remainder (or the whole of such consideration, if the same shall
be any more than the par value, if any, of such shares or if no such
determination be made by the Trustee) shall constitute capital; and, in the case
of the issue of stock as a stock dividend, the Trustees may likewise determine
the amount to be transferred from surplus to capital account in respect of such
shares.
4. The Trustees may from time to time increase, decrease or adjust
the capital account of the Trust. Unless otherwise determined by the Trustees no
change in the share capital or capital account of the Trust shall give rise to
any right on the part of any shareholder to receive a distribution of any assets
of the Trust.
5. Shares may, in the discretion of the Trustees, be acquired by
the Trust either out of surplus or out of capital, and shares so acquired shall
be either canceled or held in the treasury as an asset of the Trust, and may
subsequently be sold by the Trustees from time to time, as they may in their
discretion determine; provided however that, shares so held in the treasury
shall not be entitled to dividends or voting rights, and shall not be deemed to
be outstanding for any purpose whatsoever, and provided further that, the
redemption and cancellation of any shares by the Trustees shall not reduce the
number of authorized shares of the Trust.
6. Every shareholder shall be entitled to receive a certificate
specifying the number of shares held by him, such certificates to be in such
form as the Trustees shall determine and to be signed by the President and the
Treasurer of the Trust. In the case of the loss, mutilation or destruction of a
share certificate, the Trustees may, upon submission to them of satisfactory
evidence of such fact, issue a new one in its stead, and may, as a condition
<PAGE>
11
of such issuance, require a bond of indemnity satisfactory to them.
7. A register shall be kept under the direction of the Trustees
which shall contain the names of the shareholders, their addresses as supplied
by them, the number of shares held by them respectively, and a record of all
transfers hereof. The person in whose name shares stand in said register shall
be treated as the absolute owner thereof for all purposes hereof; and until the
existing certificate is surrendered and a transfer made in accordance with the
provisions hereof is recorded on said register, the Trustees shall not be
affected by any notice, actual or constructive, of any transfer or of any right
of any other person in such shares whatsoever.
8. Except with respect to a transfer by operation of law, as
hereinafter in this paragraph provided for, every transfer of shares shall be in
writing under the hand of the transferor or his agent thereunder duly authorized
in writing and upon delivery thereof to the Trustees, accompanied by the
existing certificate for such shares, together with such evidence of the
genuineness of such transfer, authorization and other matters as may be
reasonably required by the Trustees. Every such transfer shall be recorded in
the register and thereupon a new certificate for the shares transferred shall be
issued to the transferee, and in case of a transfer of only a part of the shares
represented by any certificate, a new certificate for the residue thereof shall
be issued to the transferor. If any person shall become entitled to any shares
in consequence of the death, bankruptcy or insolvency of any shareholder or
otherwise by operation of law, then upon production of such evidence thereof as
may be required by the Trustees, and upon delivery of the existing certificate
to the Trustees, the transfer to such person shall be recorded in the register
and such person shall receive a new certificate for such shares.
9. The shares of the Trust shall constitute personal property
entitling the shareholders and transferees and other persons becoming entitled
to shares to such rights against the Trustees and the trust estate as are herein
specifically set forth, and such rights shall at all times be subject to all of
the terms and provisions of this Declaration of Trust; and no shareholder shall
have any voice in the management or control of the property, affairs or business
of the Trust. The shareholders shall not be liable for any action of the
Trustees hereunder, and the Trustees shall have no power to obligate or bind the
shareholders personally. No shareholder shall be liable in any event except for
payments, if any, due upon shares of this Trust held by such shareholder, and
shareholders who, contrary to the provisions hereof, shall be held to any per-
<PAGE>
12
sonal liability, shall be entitled pro rata to indemnity from the trust
estate.
10. Upon the death of any shareholder all shares held by him shall
pass as part of his personal estate. The death, insolvency or incapacity of one
or more of the shareholders, or any transfer of shares, shall not operate to
terminate this Trust or affect its continuity in any way, nor shall it entitle
any person to a dissolution of the Trust, to a partition of the trust estate or
to any accounting.
11. No future, limited or contingent interest shall be recognized
other than that of the trustee of an express trust.
12. Each share shall be entitled to one vote, and the shareholders
may vote by proxy. The legal representative of any shareholder may vote the
share of such shareholder upon submission to the Trustees of evidence
satisfactory to them of the authority of such legal representative to act.
ARTICLE IX
MEETINGS
--------
1. The annual meeting of the shareholders shall be held on the
second Thursday in May in each year, if not a legal holiday, and if a legal
holiday, then on the first day following which is not a legal holiday, at the
hour specified in the notice thereof sent in the manner hereinafter provided. In
case the annual meeting for any year shall for any reason not be duly called or
held, the Trustees or the President shall cause a special meeting to be held as
soon as may be thereafter, in lieu of and for the purpose of such annual
meeting, and all proceedings at such special meeting shall have the same force
and effect as if taken at the regular annual meeting. At such annual meeting,
Trustees shall be elected for the ensuing year, and the annual financial report
of the Trustees shall be received, and such other business may be transacted as
may be specified by the Trustees in the notice of the call thereof. Special
meetings of shareholders shall be held whenever ordered by the Trustees or the
President, or whenever requested by the holders of one-tenth (1/10) in interest
of all the shares outstanding and entitled to vote.
2. A written or printed notice of each meeting of the shareholders,
whether annual or special, specifying the time, place and purposes thereof,
shall be given by the Secretary, by mailing such notice, postage prepaid, to all
shareholders entitled to vote thereat, at their addresses as shown in the
register of the Trust, at least seven (7) days
<PAGE>
13
before such meeting, but no notice of the time, place or purposes of any regular
or special meeting of the shareholders shall be required if all the shareholders
entitled to vote are present thereat, and no notice need to be given to any
shareholder who himself, or by his attorney duly authorized by a writing which
is filed with the records of the meeting, waives such notice either before or
after such meeting.
3. A majority of the shares issued and outstanding and having the
right to vote shall constitute a quorum for the transaction of business, but
less than such quorum may adjourn the meeting from time to time and the meeting
may be held as adjourned without further notice. When a quorum is present at any
meeting, all matters properly brought before the meeting shall, except as herein
otherwise expressly provided, be decided by a majority vote. For the purpose of
determining the shareholders who are entitled to vote or act at any meeting or
any adjourned session thereof, the Trustees may from time to time close the
transfer books of the Trust for such period, not exceeding twenty (20) days
prior to such meeting, as the Trustees may determine.
4. An annual meeting of the Trustees shall be held as soon as
practicable following the annual meeting of the shareholders. The Trustees may
prescribe such rules in regard to all regular or special meetings as they may
deem necessary, and may act with or without a meeting. A meeting of the Trustees
may be held at any time and at any place when called by the President, Secretary
or by two or more Trustees. No notice of the said annual meeting shall be
required, but notice of each other meeting shall be given either by the
Secretary or by the person or persons by whom such meeting is called by giving
to each of the Trustees three (3) days notice of such meeting mailed, postage
prepaid, to their usual addresses as contained on the books of the Trust,
provided however that, it shall not be necessary to give notice of any such
meetings as aforesaid to any Trustee who is present at the meeting or who either
before or after the meeting waives such notice in writing.
ARTICLE X
DIVIDENDS
---------
The Trustees in their discretion may from time to time declare
dividends payable at any date fixed by them out of the earnings or surplus
(whether paid-in or otherwise) of the trust estate, in cash or in property,
including, without limiting the generality of the foregoing, securities of this
Trust, and for that purpose may authorize issuance of certificates and scrip,
and may capitalize all or any part of the surplus, and may determine the amount
of money per share so capitalized; but no shareholder shall have any right to
any
<PAGE>
14
dividend, whether in cash, property or securities of the Trust, except when and
as such dividends shall be paid pursuant to such declaration; and no shareholder
or Trustee shall be liable personally for any such dividend, and every
shareholder entitled thereto shall look only to the trust estate for the payment
of any such dividend. In the absence of fraud, the determination of the Trustees
as to the advisability of paying any dividend, as to the net profits, earnings
and surplus of the Trust, and as to any evaluation of property, shall be final
and conclusive.
ARTICLE XI
RIGHTS OF THIRD PERSONS
-----------------------
1. Every act or thing done or omitted, and every power exercised or
obligation incurred by the Trustees or any of them, in the administration of the
Trust or in connection with any business, property or concerns of the Trust and
the trust estate, whether ostensibly in their own names or in their capacity as
Trustees hereunder, shall be done, omitted, exercised or incurred by them as
Trustees and not as individuals; and every person contracting or dealing with
the Trustees, or any agent or representative of the Trustees acting within the
scope of his authority, or any person having any claim against the Trustees,
their authorized agents and representatives, whether founded in contract or
tort, shall look only to the trust estate for the payment or satisfaction of the
same; and no shareholder or Trustee, and no agent or representative of the
Trustees acting within the scope of his authority, shall ever be personally
liable for or on account of any contract, debt, tort, claim, damage, judgment or
decree arising out of or connected with the administration or preservation of
the trust estate or the conduct of the business of the Trust. A stipulation or
notice to this effect shall be inserted in every contract, order or other
instrument signed by the Trustees or their duly authorized agent and
representatives, but the omission thereof shall not constitute a waiver of the
foregoing provisions and shall not render the Trustees, their authorized agents
or representatives, or any shareholder, personally liable.
2. Any act or thing done by the Trustees, or by the duly authorized
agents or representatives of the Trustees, shall, as to all persons dealing with
such Trustees or such duly authorized agents and representatives of the
Trustees, be conclusively deemed to be within the purposes of this Declaration
of Trust, and within the powers of the Trustees. No person dealing with the
Trustees or with any of them or with any duly authorized agent or representative
of the Trustees, shall be bound to see the application of any funds or property
passing into their hands or control.
<PAGE>
15
3. Any certificate signed by the President, Treasurer or Secretary,
or by any two Trustees, setting forth as facts any matters affecting the trust
estate or the powers and authority of the Trustees under this Declaration or
with respect to any action taken by the Trustees or the shareholders, including
statements as to who are the Trustees or the shareholders, shall be conclusive
evidence as to the existence of the alleged facts, powers, authority or action
in favor of all persons acting in reliance thereon.
ARTICLE XII
DURATION AND TERMINATION
------------------------
1. Unless sooner terminated as hereinafter provided, the Trust
hereby created shall continue for a period of twenty (20) years from and after
the death of the last survivor of the three (3) original Trustees herein
specifically named, and at the expiration of the period of time so limited the
said Trust shall terminate. Neither the death, removal, resignation nor
incapacity of any or all of the Trustees shall cause a termination of the Trust.
2. The Trustees may terminate and dissolve this Trust at any time,
but only with the consent of the owners of at least two-thirds (2/3rds) of the
shares, or their proxies, voting at a meeting called for that purpose, pursuant
to notice given as hereinabove provided and specifying the purpose of the
meeting.
3. Upon termination of the Trust for any cause, the Trustees shall
liquidate the trust estate, wind up its affairs and dispose of its property and
assets in such manner as they deem expedient, and after discharging all the
legal obligations of the Trust shall distribute the proceeds among the
shareholders in proportion to their respective interests, and for these purposes
the Trustees shall continue to act hereunder until such duties have been fully
performed. Upon such termination the Trustees may, in their discretion,
distribute all or any part of the trust estate in kind pro rata to the
shareholders if all of the shareholders consent thereto. In the event that the
Trustees shall distribute any portion of the trust estate in kind, as aforesaid,
the values determined by the Trustees in good faith and for the purposes of
allocating such distribution among the respective shareholders shall be
conclusive and binding upon all persons.
<PAGE>
16
ARTICLE XIII
AMENDMENTS
----------
The Trustees may alter, amend or add to this Declaration, and they
may convey the trust estate to a new or other Trustee or Trustees or to a
corporation, being first indemnified for any outstanding obligations or
liabilities; except however that the Trustees shall not have the power to amend
this Declaration so as to affect any right or liability of the shareholders
except with the consent and approval of the owners of at least two-thirds
(2/3rds) of the shares, or their proxies, voting at a meeting called for that
purpose pursuant to notice given as hereinabove provided and specifying the
purpose of the meeting and nature of the proposed amendment.
ARTICLE XIV
GENERAL PROVISIONS
------------------
1. The interest of the shareholders in the trust estate shall at all
times be considered personal property, and both the real estate and personal
property comprising the trust estate shall constitute a single fund.
2. In the event this Declaration of Trust shall be terminated,
altered or amended, or in the event of the resignation of a Trustee or the
election of a new Trustee not already acting, a certificate certifying such
fact, executed in accordance with the provisions of paragraph 3 of Article XI
hereof and duly acknowledged, shall within thirty (30) days from the effective
date of such termination, alteration or amendment of this Declaration, or of
such resignation or election of a Trustee, be recorded or registered in any
Registry of Deeds or Registry District of the Land Court where this Trust is
recorded or registered, provided however that, as to any person dealing with the
Trustees or the trust estate, it shall be conclusively deemed that the Trustees
as they appear from time to time on the records of any Registry of Deeds or
Registry District of the Land Court where this Declaration of Trust is recorded
or registered are the duly qualified and acting Trustees hereunder, and no such
person shall be bound by any notice, actual or constructive, of any change in
the office of Trustees not appearing of record as aforesaid.
3. Except when the context otherwise requires, any expression used
herein in the conjunctive or in the disjunctive, any expression in the singular
or the plural shall include both the singular and the plural, and any expression
in the masculine and the feminine shall include both the masculine and feminine
and, where appropriate, the neuter.
<PAGE>
17
4. The headings of the Articles of this Declaration are inserted
merely for convenience of reference and are not to be taken as any part of this
Declaration or to control or affect the meaning, construction or effect of the
same.
5. This instrument is executed by the Trustees and delivered in the
Commonwealth of Massachusetts, and the right of all parties and the construction
and effect of every provision hereof shall be subject to and construed according
to the laws of said Commonwealth.
6. If any part or parts of this Declaration shall be held invalid,
such invalidity shall not affect the remainder of this Declaration which shall
in such case read as if such invalid part or parts did not exist.
IN WITNESS WHEREOF, the said FAYE A. FLORENCE, LEONARD FLORENCE and
E. MERLE RANDOLPH executed this Declaration of Trust, as of the date first above
written.
/s/ Faye A. Florence
-------------------------------
FAYE A. FLORENCE
/s/ Leonard Florence
-------------------------------
LEONARD FLORENCE
/s/ E. M. Randolph
-------------------------------
E. MERLE RANDOLPH
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this 10th day of April, 1995 before me personally appeared FAYE
A. FLORENCE, to me known to be the person described in and who executed the
foregoing Declaration of Trust, and acknowledged to me that she executed the
same as her free act.
/s/ Kathleen M. Barbeau
--------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this 10th day of April, 1995 before me personally appeared
LEONARD FLORENCE, to me known to be the person described in and who executed the
foregoing Declaration of Trust, and acknowledged to me that he executed the same
as his free act.
/s/ Kathleen M. Barbeau
--------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this 10th day of April, 1995 before me personally appeared E.
MERLE RANDLOPH, to me known to be the person described in and who executed the
foregoing Declaration of Trust, and acknowledged to me that he executed the same
as his free act.
/s/ Kathleen M. Barbeau
--------------------------
ARTICLES OF INCORPORATION
OF
SYRATECH SILVER SALES CORP.
----------
The undersigned, being an individual, does hereby act as incorporator in
adopting the following Articles of Incorporation for the purpose of organizing a
corporation for profit, pursuant to the provisions of the Georgia Business
Corporation Code.
FIRST: The corporate name for the corporation (hereinafter called the
"corporation") is SYRATECH SILVER SALES CORP.
SECOND: The number of shares which the corporation is authorized to issue
is five thousand, all of which are of a par value of one dollar each and are of
the same class and are to be Common shares.
THIRD: The street address and county of the initial registered office of
the corporation in the State of Georgia is 66 Luckie Street, Fulton County,
Atlanta, Georgia 30303.
The name of the initial registered agent of the corporation at the said
registered office is The Prentice-Hall Corporation System, Inc.
FOURTH: The name and the address of the incorporator are:
NAME ADDRESS
---- -------
Athena Togias 15 Columbus Circle
New York, NY 10023-7773
FIFTH: The mailing address of the initial principal office of the
corporation is: 175 McClellan Highway, East Boston, Massachusetts 02128-9114.
SIXTH: The purposes for which the corporation is organized, which shall
include the authority of the corporation is to engage in any lawful business.
<PAGE>
SEVENTH: The corporation shall, to the fullest extent permitted by
the provisions of the Georgia Business Corporation Code, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said provisions from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said provisions, and
the indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any Bylaw, vote of
shareholders 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 a person.
EIGHTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of the
Georgia Business Corporation Code, as the same may be amended and supplemented.
NINTH: Action required or permitted by the provisions of the Georgia
Business Corporation Code to be taken at a shareholders' meeting may be taken
without a meeting in accordance with the provisions of Section 14-2-704 of the
Georgia Business Corporation Code if the action is taken by persons who would be
entitled to vote at a meeting shares having voting power to cast not less than
the minimum number (or numbers, in the case of voting by groups) of votes that
would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted.
TENTH: In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the corporation, the
Board of Directors, committees of the Board of Directors, and individual
directors, in addition to considering the effects of any action on the
corporation or its shareholders, may consider the interests of the employees,
customers, suppliers, and creditors of the corporation and its subsidiaries, the
communities in which offices or other establishments of the corporation and its
subsidiaries are located, and all other factors such directors consider
pertinent.
-2-
<PAGE>
ELEVENTH: The duration of the corporation shall be perpetual.
Signed on August 15, 1990.
/s/ Athena Togias
-----------------------------
Athena Togias, Incorporator
-3-
<PAGE>
ARTICLES OF INCORPORATION
OF
SYRATECH SILVER SALES CORP.
----------------
The undersigned, being an individual, does hereby act as incorporator in
adopting the following Articles of Incorporation for the purpose of organizing a
corporation for profit, pursuant to the provisions of the Georgia Business
Corporation Code.
FIRST: The corporate name for the corporation (hereinafter called the
"corporation") is SYRATECH SILVER SALES CORP.
SECOND: The number of shares which the corporation is authorized to issue
is five thousand, all of which are of a par value of one dollar each and are of
the same class and are to be Common shares.
THIRD: The street address and county of the initial registered office of
the corporation in the State of Georgia is 66 Luckie Street, Fulton County,
Atlanta, Georgia 30303.
The name of the initial registered agent of the corporation at the said
registered office is The Prentice-Ha1l Corporation System, Inc.
FOURTH: The name and the address of the incorporator are:
NAME ADDRESS
---- -------
Charles A. Coyle 66 Luckie Street
Atlanta, GA 30303
FIFTH: The Mailing address of the initial principal office of the
corporation is: 175 McClellan Highway, East Boston, Massachusetts 02128-9114.
SIXTH: The purposes for which the corporation is organized, which shall
include the authority of the corporation is to engage in any lawful business.
<PAGE>
SEVENTH: The corporation shall, to the fullest extent permitted by the
provisions of the Georgia Business Corporation Code, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said provisions from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said provisions, and
the indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any Bylaw, vote of
shareholders or disinterested director, 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 a person.
EIGHTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of the
Georgia Business Corporation Code, as the same may be amended and supplemented.
NINTH: Action required or permitted by the provisions of the Georgia
Business Corporation Code to be taken at a shareholders' meeting may be taken
without a meeting in accordance with the provisions of Section 14-2-704 of the
Georgia Business Corporation Code if the action is taken by persons who would be
entitled to vote at a meeting shares having voting power to cast not less than
the minimum number (or numbers, in the case of voting by groups) of votes that
would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted.
TENTH: In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the corporation,
the Board of Directors, committees of the Board of Directors, and individual
directors, in addition to considering the effects of any action on the
corporation or its shareholders, may consider the interests or the employees,
customers, suppliers, and creditors of the corporation and its subsidiaries, the
communities in which offices or other establishments of the corporation and its
subsidiaries are located, and all other factors such directors consider
pertinent.
-2-
<PAGE>
ELEVENTH: The duration of the corporation shall be perpetual.
Signed on August 15, 1990.
/s/ Charles A. Coyle
----------------------------------
Charles A. Coyle -- Incorporator
-3-
BYLAWS
OF
SYRATECH SILVER SALES CORP.
(a Georgia corporation)
----------
ARTICLE I
---------
SHAREHOLDERS
------------
1. SHARE CERTIFICATES. Certificates evidencing fully-paid shares of the
corporation shall set forth thereon the statements prescribed by Section
14-2-625 of the Georgia Business Corporation Code ("Business Corporation Code")
and by any other applicable provision of law, shall be signed, either manually
or in facsimile, by one or more of the following officers: the President, a
Vice-President, the Secretary, an Assistant Secretary, the Treasurer, an
Assistant Treasurer, or by one or more officers designated by the Board of
Directors, and may bear the corporate seal or its facsimile. If the person who
signed a share certificate, either manually or in facsimile, no longer holds
office when the certificate is issued, the certificate is nevertheless valid. If
the certificate is signed in facsimile, then it must be countersigned by a
transfer agent or registered by a registrar other than the corporation itself or
an employee of the corporation. The transfer agent or registrar may sign either
manually or by facsimile.
2. FRACTIONAL SHARES OR SCRIP. The corporation may: issue fractions of a
share or pay in money the value of fractions of a share; arrange for disposition
of fractional shares by or for the account of the shareholders; and issue scrip
in registered or bearer form entitling the holder to receive a full share upon
surrendering enough scrip to equal a full share. Each certificate representing
scrip must be conspicuously labeled "scrip" and must contain the information
required by subsection (b) of Section 14-2-625 of the Business Corporation Code.
The holder of a fractional share is entitled to exercise the rights of a
shareholder, including the right to vote, to receive dividends, and to
participate in the assets of the corporation upon liquidation. The holder of
scrip is not entitled to any of these rights unless the scrip provides for them.
The Board of Directors may authorize the issuance
<PAGE>
of scrip subject to any conditions considered desirable, including (a) that the
scrip will become void if not exchanged for full shares before a specified date;
and (b) that the shares for which the scrip is exchangeable may be sold and the
proceeds paid to the scripholders.
3. SHARE TRANSFERS. Upon compliance with any provisions restricting the
transferability of shares that may be set forth in the articles of
incorporation, these Bylaws, or any written agreement in respect thereof,
transfers of shares of the corporation shall be made only on the books 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 and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon, if any. Except as may be otherwise provided by law or these
Bylaws, the person in whose name shares stand on the books of the corporation
shall be deemed the owner thereof for all purposes as regards the corporation;
provided that whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact, if known to the Secretary of the
corporation, shall be so expressed in the entry of transfer.
4. RECORD DATE FOR SHAREHOLDERS. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, to demand a special meeting, or to take any other
action, the Board of Directors of the corporation may fix a date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days before the meeting or action requiring such determination
of shareholders. A determination of shareholders entitled to notice of or to
vote at a shareholders' meeting is effective for any adjournment of the meeting
unless the Board of Directors fixes a new record date, which it must do if the
meeting is adjourned to a date more than one hundred twenty days after the date
fixed for the original meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of shareholders or 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 "share" or "shares" or "shareholder" or "shareholders"
refers to an outstanding share or shares and to a holder or holders of record of
outstanding shares when the corporation is authorized to issue only one class
-2-
<PAGE>
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 articles of incorporation confer such rights where
there are two or more classes or series of shares or upon which or upon whom the
Business Corporation Code confers such rights notwithstanding that the articles
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.
6. SHAREHOLDER MEETINGS.
-- TIME. The annual meeting shall be held on the date fixed from time to
time by the directors. A special meeting shall be held on the date fixed from
time to time by the directors except when the Business Corporation Code confers
the right to call a special meeting upon the shareholders.
-- PLACE. Annual meetings and special meetings shall be held at such place
in or out of the State of Georgia as the directors shall from time to time fix.
-- CALL. Annual meetings may be called by the directors or the Chairman of
the Board of Directors, the President, or the Secretary or by any officer
instructed by the directors or the President to call the meeting. Special
meetings may be called in like manner.
-- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. The corporation shall
notify shareholders of the date, time, and place of each annual and special
shareholders' meeting. Such notice shall be no fewer than ten nor more than
sixty days before the meeting date. Unless the Business Corporation Code or the
articles of incorporation require otherwise, notice of an annual meeting shall
not be required to include a description of the purpose or purposes for which
the meeting is called. Notice of a special meeting must include a description of
the purpose or purposes for which the meeting is called. Unless the Business
Corporation Code or the articles of incorporation require otherwise, the
corporation is required to give notice only to shareholders entitled to vote at
the meeting. A shareholder may waive any notice required by the Business
Corporation Code, the articles of incorporation or the Bylaws before or after
the time stated in the notice. The waiver must be in writing, be signed by the
shareholder entitled to the notice, and be delivered to the corporation
-3-
<PAGE>
for inclusion in the minutes or filing with the corporate records. A
shareholder's attendance at a meeting waives objection to lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting;
and waives objection to consideration of a particular matter at the meeting that
is not within the purpose or purposes described in the meeting notice, unless
the shareholder objects to considering the matter when it is presented. The term
"notice" as used in this paragraph shall mean notice as prescribed by Section
14-2-141 of the Business Corporation Code.
-- VOTING LIST FOR MEETING. After fixing a record date for a meeting, the
corporation shall prepare an alphabetical list of the names of all its
shareholders who are entitled to notice of a shareholders' meeting. The list
must be arranged by voting group, and within each voting group by class or
series of shares, and show the address of and number of shares held by each
shareholder. The shareholders' list must be available for inspection by any
shareholder, his agent, or his attorney at the time and place of the meeting.
-- CONDUCT OF MEETING. Meetings of the shareholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if
any, the President, a Vice-President, if any, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the shareholders.
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 chairman of the meeting shall appoint a
secretary of the meeting.
-- PROXY REPRESENTATION. A shareholder may appoint a proxy to vote or
otherwise act for him by signing an appointment form, either personally or by
his attorney in fact. An appointment of a proxy is effective when received by
the Secretary or other officer or agent authorized to tabulate votes. An
appointment is valid for eleven months, unless a longer period is expressly
provided in the appointment form. An appointment of a proxy is revocable by the
shareholder unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest.
-4-
<PAGE>
-- SHARES HELD BY NOMINEES. The corporation may establish a procedure by
which the beneficial owner of shares that are registered in the name of a
nominee is recognized by the corporation as the shareholder. The extent of this
recognition may be determined in the procedure.
-- QUORUM. Unless the articles of incorporation or the Business Corporation
Code provides otherwise, a majority of the votes entitled to be cast on the
matter by the voting group constitutes a quorum of that voting group for action
on that matter. Once a share is represented for any purpose at a meeting other
than solely to object to holding the meeting or transacting business at the
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting.
-- VOTING. Directors are elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present. If a quorum exists, action on a matter, other than the election of
directors, by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action unless the
articles of incorporation, a Bylaw authorized by the articles under Section
14-2-1021 of the Business Corporation Code, or the Business Corporation Code
requires a greater number of affirmative votes.
7. ACTION WITHOUT MEETING. Action required or permitted by the provisions
of the Business Corporation Code to be taken at a shareholders' meeting may be
taken without a meeting in accordance with the provisions of Section 14-2-704 of
the Business Corporation Code if the action is taken by persons who would be
entitled to vote at a meeting shares having voting power to cast not less than
the minimum number (or numbers, in the case of voting by groups) of votes that
would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted.
8. ADJOURNMENT. The holders of a majority of the voting shares represented
at a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time.
-5-
<PAGE>
ARTICLE II
----------
BOARD OF DIRECTORS
------------------
1. FUNCTIONS GENERALLY -- COMPENSATION. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation managed under the direction of, a Board of Directors. The Board may
fix the compensation of directors.
2. QUALIFICATIONS AND NUMBER. Directors shall be natural persons who are
eighteen years of age or older, but need not be shareholders, citizens of the
United States, or a residents of the State of Georgia. The initial Board of
Directors consists of one person, which shall be the number of directors until
changed. Thereafter, the number of directors shall not be less than one nor more
than five. The number of directors may be fixed or changed from time to time,
within such minimum and maximum, by the shareholders or by the Board of
Directors. If not so fixed, the number shall be one. The number of directors
shall never be less than one.
3. TERMS AND VACANCIES. The terms of the initial directors of the
corporation expire at the first shareholders' meeting at which directors are
elected. The terms of all other directors expire at the next annual
shareholders' meeting following their election. A decrease in the number of
directors does not shorten an incumbent director's term. A director elected to
fill a vacancy shall be elected for the unexpired term of his predecessor in
office. Any directorship to be filled by reason of an increase in the number of
directors may be filled by the Board of Directors, but only for a term of office
continuing until the next election of directors by the shareholders and until
the election and qualification of the successor. Despite the expiration of a
director's term, he continues to serve until his successor is elected and
qualifies or until there is a decrease in the number of directors. If a vacancy
occurs on the Board of Directors, including a vacancy resulting from an increase
in the number of directors, the shareholders or the Board of Directors may fill
the vacancy; or if the directors remaining in office constitute fewer than a
quorum of the Board of Directors, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
-6-
<PAGE>
4. MEETINGS.
-- TIME. Meetings shall be held at such time as the Board shall fix, except
that the first meeting of a newly elected Board shall be held as soon after its
election as the directors may conveniently assemble.
-- PLACE. The Board of Directors may hold regular or special meetings in or
out of the State of Georgia at such place as shall be fixed by the Board.
-- CALL. No call shall be required for regular meetings for which the time
and place have been fixed. Special meetings may be called by or at the direction
of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, of
the President, or of a majority of the directors in office.
-- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. Regular meetings of the Board
of Directors may be held without notice of the date, time, place, or purpose of
the meeting. Written, or oral, notice of the time and place shall be given for
special meetings in sufficient time for the convenient assembly of the directors
thereat. The notice of any meeting need not describe the purpose of the meeting.
A director may waive any notice required by the Business Corporation Code or by
these Bylaws before or after the date and time stated in the notice. A
director's attendance at or participation in a meeting waives any required
notice to him of the meeting unless the director at the beginning of the meeting
or promptly upon his arrival objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to action
taken at the meeting. Except as hereinbefore provided, a waiver shall be in
writing, signed by the director entitled to the notice, and delivered to the
corporation for inclusion in the minutes or filing with the corporate records.
-- QUORUM AND ACTION. A quorum of the Board of Directors consists of a
majority of the number of directors prescribed in or fixed in accordance with
these Bylaws. If a quorum is present when a vote is taken, the affirmative vote
of a majority of directors present shall be the act of the Board of Directors.
The Board of Directors may permit any or all directors to participate in a
regular or special meeting by, or conduct the meeting through use of, any means
of communication by which all directors participating may
-7-
<PAGE>
simultaneously hear each other during the meeting. A director participating
in a meeting by this means is deemed to be present in person at the meeting.
-- CHAIRMAN OF THE MEETING. Meetings of the Board of Directors shall be
presided over by the following directors in the order of seniority and if
present and acting - the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, the President, or any other director chosen by the Board.
5. REMOVAL OF DIRECTORS. The shareholders may remove one or more directors
with or without cause pursuant to the provisions of Section 14-2-808 of the
Business Corporation Code.
6. COMMITTEES. The Board of Directors may create one or more committees and
appoint members of the Board of Directors to serve on them. Each committee may
have one or more members, who serve at the pleasure of the Board of Directors.
The provisions of Sections 14-2-820 through 14-2-824 of the Business Corporation
Code, which govern meetings, action without meetings, notice and waiver of
notice, and quorum and voting requirements, apply to committees and their
members as well. To the extent specified by the Board of Directors or these
Bylaws, each committee may exercise the authority of the Board of Directors
under Section 14-2-801 of the Business Corporation Code except such authority as
may not be delegated under the Business Corporation Code.
7. ACTION WITHOUT MEETING. Action required or permitted by the Business
Corporation Code to be taken at a Board of Directors' meeting may be taken
without a meeting if the action is taken by all members of the Board. The action
must be evidenced by one or more written consents describing the action taken,
signed by each director, and delivered to the corporation for inclusion in the
minutes or filing with the corporate records.
ARTICLE III
-----------
OFFICERS
--------
The corporation shall have a President, and a Secretary, and such other
officers as may be deemed necessary, who may be appointed by the directors. The
same individual may simultaneously hold more than one office in the corporation.
-8-
<PAGE>
A duly appointed officer may appoint one or more officers or assistant
officers.
Each officer of the corporation shall have the authority and shall perform
the duties prescribed by the Board of Directors or by direction of an officer
authorized by the Board of Directors to prescribe the duties of other officers;
provided, that the Secretary shall have the responsibility for preparing minutes
of the directors' and shareholders' meetings and for authenticating records of
the corporation.
The Board of Directors may remove any officer at any time with or without
cause.
ARTICLE IV
----------
REGISTERED OFFICE AND AGENT
---------------------------
The address of the initial registered office of the corporation and the
name of the initial registered agent of the corporation are set forth in the
original articles of incorporation.
ARTICLE V
---------
CORPORATE SEAL
--------------
The corporate seal shall have inscribed thereon the name of the corporation
and shall be in such form and contain such other words and/or figures as the
Board of Directors shall determine or the law require.
ARTICLE VI
----------
FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
ARTICLE VII
-----------
CONTROL OVER BYLAWS
-------------------
The corporation's Board of Directors may amend or repeal the Bylaws, except
as otherwise required by the Business Corporation Code. Notwithstanding the
foregoing provision, the corporation's shareholders may amend or repeal the
Bylaws or adopt new Bylaws.
-9-
April 10, 1997
Syratech Corporation
Syratech Holding Corporation
Wallace International Silversmiths, Inc.
Wallace International DE P.R., Inc.
International Silver Company
International Silver DE P.R., Inc.
PMW Silver DE P.R., Inc.
Towle Manufacturing Company
Rosemar Silver Company, Inc.
Towle Holloware, Inc.
Farberware Inc.
Silvestri, Inc.
Silvestri, Inc. of South Carolina
Rauch Industries, Inc.
Rochard, Inc.
Holiday Products, Inc.
Northstar Sales Corporation
Leonard Florence Associates, Inc.
CHI International, Inc.
Syratech Security Corporation
Syratech West Coast Warehouse Corp.
175 Amlegion Revere Realty Trust
Syratech Silver Sales Corp.
Registration Statement on Form S-3
(Registration No. 333-18133)
--------------------------
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-3 (including
all amendments and supplements thereto, the "Registration Statement") filed by
<PAGE>
Syratech Corporation 2
Syratech Corporation, a Delaware corporation (the "Company") and several
guarantors (the "Guarantors"), with the Securities and Exchange Commission (the
"SEC") on December 18, 1996, as amended by Amendment No. 1 to the Registration
Statement filed with the SEC on March 18, 1997 and Amendment No. 2 to the
Registration Statement filed with the SEC on April 10, 1997, pursuant to the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
promulgated thereunder, we have been requested to render our opinion as to the
legality of the securities being registered thereunder. The Registration
Statement relates to the registration under the Act of the Company's Senior
Notes due 2007 (the "Notes") and the Subsidiary Guarantees of the Notes (the
"Guarantees"). Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Registration
Statement.
In connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents:
1. The Registration Statement;
2. The proposed form of the Underwriting Agreement included as
Exhibit 1.1 to the Registration Statement (the "Underwriting
Agreement");
<PAGE>
Syratech Corporation 3
3. The proposed form of the Indenture included as Exhibit 4.1 to the
Registration Statement pursuant to which the Notes are to be issued
(the "Indenture");
4. The proposed form of Note included as Exhibit A to the Indenture;
and
5. The proposed form of Subsidiary Guarantee included as Exhibit B to
the Indenture.
In addition, we have examined: (i) such corporate records of the
Company and the Guarantors incorporated in the States of Delaware and New York
(the "Delaware and New York Guarantors") as we have considered appropriate,
including copies of their certificates of incorporation or articles of
incorporation, as amended, and by-laws, as amended, as in effect on the date
hereof, and certified copies of resolutions of the boards of directors of the
Company and the Delaware and New York Guarantors; and (ii) such other
certificates, agreements and documents as we deemed relevant and necessary as a
basis for the opinions hereinafter expressed.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the
enforceability of the Underwriting Agreement and the Indenture against each
party thereto other than the Company and the Guarantors, the legal capacity of
all individuals who have executed any of the documents, the authenticity of all
documents submitted to us as
<PAGE>
Syratech Corporation 4
originals, the conformity to the original documents of all documents submitted
to us as certified, photostatic, reproduced or conformed copies of valid
existing agreements or other documents and the authenticity of all such latter
documents. We have also assumed that the Underwriting Agreement, the Indenture,
the Notes and the Guarantees to be executed and delivered by the Company and
the Guarantors will be in the respective forms filed as Exhibits to the
Registration Statement.
In expressing the opinions set forth herein, we have relied upon the
factual matters contained in the representations and warranties of the Company
and the Guarantors made in the documents; and we have consulted with, and relied
solely upon the advice of, counsel in the states of Arkansas, South Carolina,
North Carolina, Massachusetts, Maryland, California and Georgia to the effect
that (i) the Indenture has been duly authorized by the Guarantors thereto other
than the Delaware and New York Guarantors, (ii) the Guarantees have been duly
authorized by the Guarantors other than the Delaware and New York Guarantors in
accordance with the terms of the Indenture and (iii) the execution and delivery
by the Guarantors other than the Delaware and New York Guarantors of the
Indenture and the Guarantees, and the performance by such Guarantors of their
obligations under the Indenture and the Guarantees, will not conflict with or
violate their articles of incorporation, by-laws or the laws of their respective
states of incorporation.
<PAGE>
Syratech Corporation 5
Based upon the foregoing, and subject to the assumptions, exceptions
and qualifications set forth herein, we are of the opinion that:
(i) The Notes, when duly executed, issued and delivered by the
Company and paid for as contemplated in the Registration Statement, the
Underwriting Agreement and the Indenture, and authenticated by the Trustee under
the Indenture, will be legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms.
(ii) Assuming that due authentication and delivery of the
Notes pursuant, to the Indenture, the Guarantees, when duly executed, issued and
delivered by the Guarantors, will be legal, valid and binding obligations of the
Guarantors enforceable against the Guarantors in accordance with their terms.
The foregoing opinion is subject to the qualification that (i) the
enforceability of the Notes and the Guarantees may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally; and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
Our opinions expressed above are limited to the laws of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
<PAGE>
Syratech Corporation 6
laws of the United States. Please be advised that no member of this firm is
admitted to practice in the State of Delaware. Our opinions are rendered only
with respect to the laws, and the rules, regulations and orders thereunder,
which are currently in effect.
We hereby consent to the use of our name in the Registration Statement
and in the prospectus therein as the same appears in the caption "Legal Matters"
and to the use of this opinion as an exhibit to the Registration Statement. In
giving this consent, we do not thereby admit that we come within the category of
persons whose consent is required by the Act or by the rules and regulations
promulgated thereunder.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
