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ADOPTED: July 29, 1969
AMENDED: December 15, 1969
AMENDED: December 7, 1970
AMENDED: January 11, 1971
AMENDED: May 3, 1971
AMENDED: December 27, 1971
AMENDED: April 22, 1975
AMENDED: January 14, 1976
AMENDED: December 17, 1976
AMENDED: December 14, 1978
AMENDED: June 25, 1979
AMENDED: December 19, 1979
AMENDED: February 18, 1981
AMENDED: October 7, 1981
AMENDED: December 15, 1982
AMENDED: February 16, 1983
AMENDED: May 18, 1983
AMENDED: February 17, 1984
AMENDED: December 31, 1985
AMENDED: April 2, 1987
AMENDED: July 10, 1987
AMENDED: February 10, 1988
AMENDED: March 20, 1992
AMENDED: February 26, 1993
AMENDED: July 1, 1993
AMENDED: January 20, 1994
AMENDED: February 23, 1994
AMENDED: August 17, 1994
AMENDED: November 21, 1995
AMENDED AND RESTATED BY-LAWS
OF
ZAPATA CORPORATION
(a Delaware corporation)
__________
ARTICLE I
Offices
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SECTION 1. Registered Office. The registered office of ZAPATA
CORPORATION (hereinafter called the Corporation) shall be in the City of
Wilmington, County of New Castle, State of Delaware, and the resident agent in
charge thereof shall be The Corporation Trust Company.
SECTION 2. Other Offices. The Corporation may have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors
may from time to time determine or as shall
be necessary or appropriate for the conduct of the business of the Corporation.
<PAGE>
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of Meeting. All meetings of the stockholders of
the Corporation shall be held at such place or places, within or without the
State of Delaware, as may from time to time be fixed by the Board of Directors,
or as shall be specified or fixed in the respective notices or waivers of notice
thereof.
SECTION 2. Annual Meetings. The annual meeting of the stockholders
of the Corporation for the election of directors and for the transaction of such
other business as may come before the meeting shall be held on such date in each
year and at such time as shall be designated by the Board of Directors and
stated in the notice of the meeting.
SECTION 3. Special Meetings. A special meeting of the
stockholders, or of any class thereof entitled to vote, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called at any time by the Chairman of the Board of
Directors or by order of the Board of Directors and shall be called by the
Chairman of the Board of Directors or the Board of Directors upon the written
request of stockholders holding of record at least 80% of the outstanding shares
of stock of the Corporation entitled to vote at such meeting as of the date of
such request. Such written request shall state the purpose or purposes for
which such meeting is to be called. Business transacted at any such special
meeting shall be limited to the purposes stated in the notice.
SECTION 4. Notice of Meetings. Except as otherwise expressly
required by law, notice of each meeting of stockholders, whether annual or
special, shall be given at least ten (10) days before the date on which the
meeting is to be held, to each stockholder of record entitled to vote thereat by
delivering a typewritten or printed notice thereof to him personally, or by
mailing such notice in a postage prepaid envelope directed to him at his address
as it appears on the stock book of the Corporation. Every notice of a special
meeting of the stockholders, besides stating the time and place of the meeting,
shall state briefly the objects or purposes thereof. Notice of any adjourned
meeting of the stockholders shall not be required to be given, except where
expressly required by law.
SECTION 5. Record Date. The Board of Directors may fix, in
advance, a date as the record date for the purpose of determining stockholders
entitled to notice of, or to vote at, any meeting of stockholders, or
stockholders entitled to receive payment of any dividend or the allotment of any
rights, or in order to make a determination of stockholders for any other proper
purpose. Such date, in any case, shall be not more than sixty days, and in case
of a meeting of stockholders not less than ten days, prior to the date on which
the particular action requiring such determination of stockholders is to be
taken. 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.
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SECTION 6. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of the stock
ledger, either directly or through a transfer agent appointed by the Board, to
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at such meeting, arranged in
alphabetical order. Such list shall be open to the examination of any
stockholder at the place where said meeting is to be held for said ten (10)
days, and shall be produced and kept at the time and place of the meeting during
the whole time thereof, and subject to the inspection of any stockholder who may
be present. The original or a duplicate stock ledger shall be the only evidence
as to who are the stockholders entitled to examine such list or the books of the
Corporation or to vote in person or by proxy at such meeting.
SECTION 7. Quorum. At each meeting of the stockholders, the
holders of record of a majority of the issued and outstanding stock of the
Corporation entitled to vote at such meeting, present in person or by proxy,
shall constitute a quorum for the transaction of business, except where
otherwise provided by these By-laws, by the Certificate of Incorporation or by
law. In the absence of a quorum, any officer entitled to preside at, or act as
Secretary of such meeting, shall have the power to adjourn the meeting from time
to time until a quorum shall be constituted. At any such adjourned meeting at
which a quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally called.
SECTION 8. Voting at Meetings. Any holder of shares of capital
stock of the Corporation entitled to vote shall be entitled to one vote for each
such share, either in person or by proxy executed in writing by him or by his
duly authorized attorney in fact. No proxy shall be valid after eleven months
from the date of its execution unless otherwise provided in the proxy. Each
proxy shall be revocable unless expressly provided therein to be irrevocable and
unless it is coupled with an interest sufficient in law to support an
irrevocable power. Stockholders of the Corporation shall not have cumulative
voting rights in the election of directors.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The property, business and affairs of
the Corporation shall be managed by the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By-laws
directed or required to be exercised or done by the stockholders.
SECTION 2. Number and Term of Office. The number of directors that
shall constitute the whole Board of Directors shall be fixed by, and may be
increased or decreased from time to time by, the affirmative vote of a majority
of the numbers at any time constituting the Board of Directors of the
Corporation. In the absence of such a designation, the number of directors
constituting the whole Board of Directors shall be five (5). Directors need not
be stockholders. Each director shall hold office for the full term of office to
which he
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shall have been elected and until his successor shall have been duly elected and
shall qualify, or until his earlier death, resignation or removal.
SECTION 3. Place of Meetings. The Board of Directors may hold its
meetings, have one or more offices, and keep the books and records of the
Corporation, at such place or places within or without the State of Delaware, as
the Board may from time to time determine.
SECTION 4. First Meeting. After each annual election of Directors
and on the same day or as soon thereafter as convenient, the Board of Directors
shall meet for the purpose of organization, the election of officers and the
transaction of other business at the place where such annual election is held.
Notice of such meeting need not be given. Such meeting may be held at any other
time or place as shall be specified in a notice given as hereinafter provided
for special meetings of the Board of Directors or in a consent and waiver of
notice thereof signed by all the directors.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be held at any time upon the call of the Chairman of the Board and
Chief Executive Officer, the Secretary or any two directors of the Corporation.
Notice shall be given, either personally or by mail or telegram at least twenty-
four hours before the meeting. Notice of the time, place and purpose of such
meeting may be waived in writing before or after such meeting, and shall be
equivalent to the giving of notice. Attendance of a director at such meeting
shall also constitute a waiver of notice thereof, except where he attends for
the announced purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
SECTION 7. Quorum. A majority of the directors at the time in
office present at any regular or special meeting of the Board of Directors shall
constitute a quorum for the transaction of business; except that in no case
shall a quorum be less than one-third of the total number of directors
authorized; and, except as otherwise required by statute, by the Certificate of
Incorporation or by these By-laws, the act of a majority of the directors
present at any such meeting at which a quorum is present shall be the act of the
Board. In the absence of a quorum, a majority of the directors present may
adjourn the meeting from time to time until a quorum shall be present. Notice
of any adjourned meeting need not be given.
SECTION 8. Vacancies and Newly Created Directorships. Any vacancy
that shall occur in the Board of Directors by reason of death, resignation,
disqualification or removal or any other cause whatever, and newly created
directorships resulting from any 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 stockholders of the Corporation at the next annual meeting or
any special meeting called for the purpose, and, except as otherwise
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provided by the Certificate of Incorporation with respect to newly created
directorships filled by the Board of Directors, each director so chosen shall
hold office until the annual meeting at which the term of the class to which he
shall have been elected expires and until his successor shall be duly elected
and shall qualify, or until his earlier death, resignation or removal.
SECTION 9. 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 two 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. Any such committee, to the extent provided by the Board, shall have
and may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however,
that in the absence or disqualification of any member of 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. Such committee
or committee shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
SECTION 10. Action Without a 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 of Directors or of any
committee thereof may be taken without a meeting, if prior to such action a
written consent thereto is signed by all members of the Board or of such
committee as the case may be, and such written consent is filed with the minutes
of proceedings of the Board or of such committee.
SECTION 11. Compensation of Directors. Directors, as such, shall
not receive any stated salary for their services, but may be paid for their
services such amounts as may be fixed from time to time by resolution of the
Board. Expenses of attendance, if any, may be paid for attendance at each
regular or special meeting of the Board. No such payments shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
SECTION 12. Vote of Directors. Notwithstanding anything to the
contrary in these By-laws, the following actions shall require the vote of six
(6) Directors: (a) any alteration, amendment or repeal of these By-laws; (b)
the issuance of, or the adoption of any agreement or plan for the issuance of,
any stock, rights, or other securities (including, without limitation,
securities convertible into or exchangeable or exercisable for stock of the
Company) to the stockholders or any class thereof generally, any term of which
is contingent upon or effective upon the acquisition by any person of any of or
all of the Company's stock or upon any other action by any person
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with respect to such stock; (c) the creation of any committee of the Board of
Directors; (d) the filling of vacancies on the Board of Directors or any
committee thereof created by the death, resignation or removal of Malcolm I.
Glazer or Avram A. Glazer; or (e) any action to remove Malcolm I. Glazer or
Avram A. Glazer from any committee of the Board of Directors. Notwithstanding
anything to the contrary in these By-laws, effective with the Corporation's 1995
annual meeting of stockholders, the action in this Section 12 shall require the
vote of five (5) Directors.
ARTICLE IV
Officers
SECTION 1. Title, Number and Salaries. The officers of the
Corporation shall be elected by the Board of Directors, and shall consist of a
Chairman of the Board and Chief Executive Officer, Vice Presidents, a Secretary,
a Treasurer, and such Assistant Secretaries and Assistant Treasurers as the
Board of Directors may from time to time designate, all of whom shall hold
office until their successors are elected and qualified. Two or more offices,
except the office of Chairman of the Board and Chief Executive Officer and the
office of the Secretary, may be held by the same person, but no officer shall
execute, acknowledge or verify any instrument in more than one capacity. The
salaries of the officers shall be determined by the Board of Directors or
committee duly designated thereby, and may be altered from time to time except
as otherwise provided by contract. All officers shall be entitled to be paid or
reimbursed for all cost and expenditures incurred in the Corporation's business.
SECTION 2. Vacancies. Whenever any vacancies shall occur in any
office by death, resignation, increase in the number of officers of the
Corporation, or otherwise, the same shall be filled by the Board of Directors,
and the officer so elected shall hold office until his successor is chosen and
qualified.
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 will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
SECTION 4. Chairman of the Board. The Chairman of the Board shall
preside at all meeting of the stockholders and directors, shall be ex officio a
member of all standing committees to which he is not otherwise appointed, shall
see that all orders and resolutions of the Board are carried into effect, and,
subject to the directions of the Board, shall have general and active management
of the business of the Corporation and shall perform such other duties as may
from time to time be assigned to him by the Board.
SECTION 5. Chief Executive Officer and President. The Chief
Executive Officer and President shall be the chief administrative officer of the
Corporation, and subject to the provisions of SECTION 4
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of this ARTICLE IV, shall perform all the duties incident to the office of Chief
Executive Officer and President of a corporation and, subject to the direction
of the Board, shall have general and active management of the business of the
Corporation and shall perform all duties incident to the office of Chief
Executive Officer and President of a corporation and such other duties as may
from time to time be assigned to him by the Board. At the request of the
Chairman of the Board or of the Board, or in the absence or disability of the
Chairman of the Board, the Chief Executive Officer and President shall have all
the powers and perform all the duties of the Chairman of the Board.
SECTION 6. Vice Presidents. In the absence or disability of the
Chairman of the Board and Chief Executive Officer, the Vice Presidents, in the
order of their seniority, shall perform the duties and exercise the powers of
the Chairman of the Board and Chief Executive Officer, other than as otherwise
provided in the first sentence of SECTION 4 of this ARTICLE IV.
SECTION 7. Secretary. It shall be the duty of the Secretary to
attend all meetings of the stockholders and Board of Directors, to record
correctly the proceedings had at such meetings in a book suitable for that
purpose and to perform like duties for standing committees when required. It
shall also be the duty of the Secretary to attest with his signature and the
seal of the Corporation all stock certificates issued by the Corporation and to
keep a stock ledger in which shall be correctly recorded all transactions
pertaining to the capital stock of the Corporation. He shall also attest with
his signature and the seal of the Corporation all deeds, conveyances or other
instruments requiring the seal of the Corporation. The person holding the
office of Secretary shall also perform, under the direction and subject to the
control of the Board of Directors, such other duties as may be assigned to him.
The duties of the Secretary may also be performed by any Assistant Secretary.
SECTION 8. Treasurer. The Treasurer shall keep such funds of the
Corporation as may be entrusted to his keeping and account for the same. He
shall be prepared at all times to give information as to the condition of the
Corporation and shall make a detailed annual report of the entire business and
financial condition of the Corporation. The person holding the office of
Treasurer shall also perform, under the direction and subject to the control of
the Board of Directors, such other duties as may be assigned to him. The duties
of the Treasurer may also be performed by any Assistant Treasurer.
SECTION 9. Delegation of Authority. In the case of any absence of
any officer of the Corporation or for any other reason that the Board may deem
sufficient, the Board of Directors may delegate some or all of the powers or
duties of such officer to any other officer or to any director, employee,
stockholder or agent for whatever period of time seems desirable, providing that
a majority of the entire Board concurs therein.
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ARTICLE V
Indemnification and Insurance
SECTION 1. General Indemnification. Subject to the provisions of
SECTION 3 of this ARTICLE V, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. Indemnification in Actions by or in the Right of the
Corporation. Subject to the provisions of SECTION 3 of this ARTICLE V, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable (i) for any breach of his 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 he derived an improper personal benefit unless and only to the extent
that the Delaware Court of Chancery or 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 of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Delaware
Court of Chancery or such other court shall deem proper.
SECTION 3. Determination of Standard of Conduct. Any indemnification
under SECTIONS 1 and 2 of this ARTICLE V (unless
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ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because he had met the applicable
standard of conduct set forth in said SECTIONS 1 and 2. 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 such action, suit or proceeding, or (2) if
such quorum is not obtainable or, even if obtainable and a quorum of
disinterested directors so directs, by independent legal counsel (who may be
counsel to the Corporation) in a written opinion, or (3) by the stockholders.
SECTION 4. Successful Defense. If a director or officer of the
Corporation has been successful on the merits or otherwise as a party to any
action, suit or proceeding referred to in SECTIONS 1 and 2 of this ARTICLE V, or
with respect to any claim, issue or matter therein (to the extent that a portion
of his expenses can be reasonably allocated thereto), he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
SECTION 5. Expenses During Proceeding. Expenses incurred in
defending a civil, criminal, administrative or investigative action, suit or
proceeding, or threat thereof, 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 the director or officer to whom or on whose behalf any such amount is paid 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 V.
SECTION 6. Exclusivity. The indemnification provided by this
ARTICLE V shall not be deemed exclusive of any other rights to which any person
indemnified may be entitled under any other By-Law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such office
and shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 7. 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 would have the power to indemnify him
against such liability under the provisions of this ARTICLE V or of Section 145
of the General Corporation Law of the State of Delaware.
SECTION 8. Definitions. For the purposes of this ARTICLE V,
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation so
that any person who is or was a director or officer of such a constituent
corporation or is or was
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serving at the request of such constituent corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise
shall stand in the same position under the provisions of this ARTICLE V with
respect to the resulting or surviving corporation as he would if he had served
the resulting or surviving corporation in the same capacity. For purposes of
this ARTICLE V, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this ARTICLE V.
ARTICLE VI
Shares of Capital Stock and Their Transfer
SECTION 1. Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to a certificate or certificates, to be in such
form as the Board shall prescribe, certifying the number and class of shares of
the capital stock of the Corporation owned by him. The certificates for the
respective classes of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board and Chief Executive Officer or any Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation and its seal be affixed thereto; provided, however, that,
where such certificate is signed by a transfer agent or an assistant transfer
agent or by a transfer clerk acting on behalf of the Corporation and a
registrar, if the Board shall by Resolution so authorize, the signature of such
Chairman of the Board and Chief Executive Officer, Vice President, Treasurer,
Secretary, Assistant Treasurer or Assistant Secretary and the seal of the
Corporation may be facsimile. In case any officer or officers of the
Corporation who shall have signed, or whose facsimile signature or signatures
shall have been used on, any such certificate or certificates shall cease to be
such officer or officers, whether by reason of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be adopted by the
Corporation and be issue and delivered as though the person or persons who
signed such certificate or certificates, or whose facsimile signature or
signatures shall have been affixed thereto, had not ceased to be such officer or
officers. A record shall be kept by the Secretary, transfer agent or by any
other officer, employee or agent designated by the Board of the name of the
person, firm or corporation owning the stock represented by such certificates,
the number and class of shares represented by such certificates, respectively,
and the respective dates thereof, and in case of cancellation, the respective
dates of cancellation. Every certificate surrendered to the Corporation for
exchange or transfer
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shall be cancelled, and no new certificate or certificates shall be issued in
exchange for any existing certificate until such existing certificate shall have
been so cancelled, except in cases provided for in SECTION 5 of this ARTICLE VI.
SECTION 2. Classes and Series of Classes of Stock. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock; provided that, in lieu of the foregoing requirements, there may
be set forth on the face or back of the Certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 3. Transfer of Stock. Transfers of shares of the capital
stock 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 appointed as in SECTION 4 of this ARTICLE VI provided, and
on surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation; provided, however, 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.
SECTION 4. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these By-laws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more Transfer
Agents and one or more Registrars, and may require all certificates of stock to
bear the signature or signatures of any of them.
SECTION 5. Lost, Destroyed or Mutilated Certificates. In case of
loss, destruction or mutilation of any certificates of stock, another
certificate or certificates may be issued in place thereof upon proof of such
loss, destruction, or mutilation and upon the giving of a bond of indemnity to
the Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper so to do.
SECTION 6. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any
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regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE VII
Miscellaneous Provisions
SECTION 1. Corporate Seal. The seal of the Corporation shall be
circular in form with the words "Corporate SEAL Delaware" in the center and the
name of the Corporation around the margin thereof.
SECTION 2. Fiscal Year. The fiscal year of the Corporation shall
end at the close of business on the 30th day of September in each year.
SECTION 3. Annual Reports. The Board of Directors shall present at
each annual meeting of the stockholders a full report of the business and
condition of the Corporation.
SECTION 4. Execution of Contracts. The Board may authorize any
officer or officers, agent or agents, or attorney or attorneys, to enter into
any contract or execute and deliver any instrument in the name and on behalf of
the Corporation, and such authority may be general or confined to specific
instances; and, unless so authorized by the Board or expressly authorized by
these By-laws, no officer, agent or employee shall have any power or authority
to bind the Corporation by any contract or other engagement or to pledge its
credit or to render it liable pecuniarily for any purpose or in any amount.
SECTION 5. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board or by a committee of the Board to whom the Board has
delegated such power.
SECTION 6. Checks, Drafts, Etc. All checks, drafts, bills, notes
and other negotiable instruments and orders for the payment of money issued in
the name of the Corporation, shall be signed by such officer or officers,
employee or employees, agent or agents, of the Corporation and in such manner as
shall from time to time be determined by resolution of the Board.
SECTION 7. 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 may designate,
or as may be designated by any officer or officers, agent or agents, or attorney
or attorneys, of the Corporation
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to whom power in that respect shall have been delegated by the Board. For the
purpose of deposit and for the purpose of collection for the account of the
Corporation, the Chairman of the Board and Chief Executive Officer, or any Vice
President, or the Treasurer (or any other officer or agent or employee or
attorney of the Corporation to whom such power shall be delegated by the Board)
may endorse, assign and deliver checks, drafts and other orders for the payment
of money which are payable to the order of the Corporation.
SECTION 8. General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositaries as it may
designate or as may be designated by any officer or officers, agent or agents,
or attorney or attorneys, of the Corporation to whom power in that respect shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these By-laws, as it may deem expedient.
ARTICLE VIII
Amendments
All By-laws of the Corporation shall be subject to alteration or
repeal, and new By-laws shall be adopted, either by the affirmative votes of the
holders of record of 80% or more of the issued and outstanding stock of the
Corporation entitled to vote in respect thereof, given at any annual or special
meeting, or by the vote provided for in SECTION 12 of ARTICLE III hereof given
at any regular or special meeting of the Board of Directors, provided that
notice of the proposal so to alter or repeal or to make such By-laws be included
in the notice of such meeting of the stockholders or the Board, as the case may
be. By-laws, whether made or altered by the stockholders or by the Board of
Directors, shall be subject to alteration or repeal by the stockholders by the
vote hereinabove specified.
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