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AMENDED AND RESTATED BYLAWS
OF
▇▇▇▇▇ GOLF, INC.
(A DELAWARE CORPORATION)
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AMENDED AND RESTATED BYLAWS
OF
▇▇▇▇▇ GOLF, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
SECTION 1.1. The registered office of the Corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware.
SECTION 1.2. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business
as may properly come before the meeting shall be held at such place within or
without the State of Delaware, and on such date and at such hour of the day
as the Board of Directors shall determine.
SECTION 2.2. SPECIAL MEETINGS. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by order of the President, and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors or the whole Executive Committee. Special
meetings of the stockholders of the Corporation may not be called by any
other person or persons. Special meetings of the stockholders shall be held
at such place within or without the State of Delaware, on such date, and at
such time as may be designated by the person or persons calling the meeting.
SECTION 2.3. NOTICE OF MEETINGS. Written notice of every meeting of
stockholders, stating the time, place and purposes thereof, shall be given
personally or by mail at least ten (10), but not more than sixty (60), days
(except as otherwise provided by law) before the date of such meeting to each
person who appears on the stock transfer books of the Corporation as a
stockholder and who is entitled to vote at such meeting. If such notice is
mailed, it shall be directed to such stockholder at his address as it appears
on the stock transfer books of the Corporation.
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SECTION 2.4. QUORUM. At any meeting of the stockholders the holders of a
majority of the shares of the Corporation entitled to vote at such meeting,
present in person or represented by proxy, shall constitute a quorum for all
purposes, except where otherwise provided by law or in the Certificate of
Incorporation. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum and the votes present may
continue to transact business until adjournment, provided that any action (other
than adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
SECTION 2.5. ADJOURNMENTS. If at any meeting of stockholders a quorum
shall fail to attend in person or by proxy, the holders of a majority of the
shares present in person or by proxy and entitled to vote at such meeting may
adjourn the meeting from time to time until a quorum shall attend, and
thereupon any business may be transacted which might have been transacted at
the meeting as originally called. Notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken; provided, however, that if the adjournment is for
more than thirty (30) days or if after the adjournment a new record date is
fixed, notice of the adjourned date shall be given.
SECTION 2.6. ORGANIZATION; MEETING RULES. The Chairman of the Board,
if one is elected, and in his absence the President, and in their absence the
Vice President, shall call meetings of the stockholders to order and shall
act as chairman thereof. The Secretary or an Assistant Secretary of the
Corporation shall act as secretary at all meetings of the stockholders when
present, and, in the absence of both, the presiding officer may appoint any
person to act as secretary. The chairman of any meeting of stockholders
shall determine the order of business and the rules and procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as he may deem appropriate in his discretion.
SECTION 2.7. VOTING. At each meeting of the stockholders, each holder
of the shares of Common Stock shall be entitled to one vote on such matter
for each such share and may exercise such voting right either in person or by
proxy appointed by an instrument in writing subscribed by such stockholder or
his duly authorized attorney. No such proxy shall be voted or acted upon
after eleven (11) months from its date unless the proxy provides for a longer
period. Voting need not be by ballot. All elections of directors shall be
decided by a plurality vote and all questions decided and actions authorized
by a majority vote, except as otherwise required by law.
SECTION 2.8. INSPECTORS. At any meeting of stockholders, inspectors
of election may be appointed by the presiding officer of the meeting for the
purpose of opening and closing the polls, receiving and taking charge of the
proxies, and receiving and counting the ballots or the vote of stockholders
otherwise given. The inspectors shall be appointed by the presiding officer
of the meeting, shall be sworn to faithfully perform their duties, and shall
in writing certify to the returns. No candidate for election as director
shall be appointed or act as inspector.
SECTION 2.9. STOCKHOLDER LIST. At least ten (10) 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
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registered in the name of such stockholder, shall be prepared and held open
to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours for said ten (10) days 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 meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.10. BUSINESS TO BE TRANSACTED AT MEETINGS. At a meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before a special
meeting, business must be specified in the notice of the meeting (or any
supplement thereto). To be properly brought before an annual meeting,
business must be (a) specified in the notice of the meeting (or any
supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the meeting by or at the direction of
the Board of Directors or (c) otherwise properly brought before the meeting
by a stockholder. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must, in addition to any
requirements imposed by federal securities law or other laws, have given
timely notice thereof in writing to the secretary of the Corporation. To be
timely for an annual meeting, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation, no
later than ninety (90) days prior to the scheduled meeting, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, if less than one hundred (100) days notice or prior public
disclosure of the date of the scheduled meeting is given, notice by the
stockholders must be so delivered or received not later than the close of
business on the tenth (10th) day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the day
on which public disclosure was made. A stockholder's notice to the secretary
with regard to an annual meeting shall set forth as to each matter that the
stockholder proposes to bring before the meeting, (a) a brief description of
the business desired to be brought before the meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholders supporting such
proposal, (c) the class and number of shares of the Corporation that are
beneficially owned by the supporting stockholders on the date of the
presenting stockholders' notice and (d) any material interest of the
presenting or supporting stockholders in such business. The Chairman of the
meeting may refuse to bring before a meeting any business not properly
brought before the meeting in compliance with this section.
ARTICLE III
DIRECTORS
SECTION 3.1. FUNCTIONS AND NUMBER. The property, business and affairs of
the Corporation shall be managed and controlled by a Board of Directors, who
need not be stockholders, citizens of the United States or residents of the
State of Delaware. The number of members which shall constitute the Board of
Directors shall be determined from time to time by resolution of the Board of
Directors or by the stockholders at an annual or special meeting held for that
purpose, but no decrease in the Board of Directors shall have the effect of
shortening the term of an incumbent director. Upon approval of these Amended
and Restated Bylaws, the
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Board of Directors shall consist of nine (9) members, such number to
constitute the whole Board. 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. Except as otherwise provided by law or in these Bylaws or
in the Certificate of Incorporation, the directors shall be elected by the
stockholders entitled to vote at the annual meeting of stockholders of the
Corporation. Subject to law, to the Certificate of Incorporation and to the
other provisions of these Bylaws, each director shall hold office until his
or her term of office expires and until his or her successor shall have been
elected and qualified. The directors shall be divided, with respect to the
terms for which they severally hold office, into three (3) classes, hereby
designated as Class I, Class II and Class III. Each class shall have at least
three (3) directors and the three (3) classes shall be as nearly equal in
number as possible. The initial term of office of the Class I, Class II and
Class III directors, elected at the 1998 annual meeting of stockholders,
shall expire at the next succeeding annual meeting of stockholders, the
second succeeding annual meeting of stockholders and the third succeeding
annual meeting of stockholders, respectively. At each annual meeting of
stockholders after 1999, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of stockholders to be held in the third year following
the year of their election.
SECTION 3.2. REMOVAL. Any director may be removed by the affirmative
vote of the holders of a majority of the then outstanding shares of Common
Stock only for cause.
SECTION 3.3. VACANCIES. Unless otherwise provided in the Certificate
of Incorporation or in these Bylaws, vacancies among the directors, whether
caused by resignation, death, disqualification, removal, an increase in the
authorized number of directors or otherwise, may be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director. Vacancies that occur on the Board of Directors during the
year may be filled by the Board of Directors as hereinabove provided for the
unexpired term of the vacating directors predecessor in office.
SECTION 3.4. PLACE OF MEETING. The directors may hold their meetings
and may have one or more offices and keep the books of the Corporation
(except as otherwise may at any time be provided by law) at such place or
places within or without the State of Delaware as the Board may from time to
time determine.
SECTION 3.5. ANNUAL MEETING. The newly elected Board may meet for the
purpose of organization, the election of officers and the transaction of
other business, at such time and place within or without the State of
Delaware as shall be fixed as provided in Section 3.7 of this Article for
special meetings of the Board of Directors.
SECTION 3.6. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such time and place within or without the State of
Delaware as the Board of Directors shall from time to time by resolution
determine and no notice of such regular meetings shall be required.
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SECTION 3.7. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the direction of the President or
of one-third of the directors then in office. The Secretary or some other
officer or director of the Corporation shall give notice to each director of
the time and place of each special meeting by mailing the same at least three
(3) days before the meeting or by telexing, telegraphing or telephoning the
same not later than the day before the meeting, at the residence address of
each director or at his usual place of business. Special meetings of the
Board shall be held at such place within or without the State of Delaware as
shall be specified in the call for the meeting. Unless expressly required by
statute, by the Certificate of Incorporation or by the Bylaws, neither the
business to be transacted at, nor the purpose of, any special meeting of the
Board of Directors need be specified in the notice of a meeting.
SECTION 3.8. QUORUM. Except as otherwise provided by law or in the
Certificate of Incorporation, a majority of the directors in office shall
constitute a quorum for the transaction of business. A majority of those
present at the time and place of any regular or special meeting, if less than
a quorum be present, may adjourn from time to time without notice, until a
quorum be had. The act of a majority of directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise provided by law or in the Certificate of Incorporation.
SECTION 3.9. COMPENSATION. The Board of Directors shall have the
authority to fix by resolution the compensation of directors.
SECTION 3.10. ORGANIZATION. At all meetings of the Board of Directors,
the President, or in his absence the Vice President if he is a member of the
Board, or in their absence, a chairman chosen by the directors shall preside.
The Secretary or an Assistant Secretary of the Corporation shall act as
secretary at all meetings of the Board of Directors when present, and, in the
absence of both, the presiding officer may appoint any person to act as
secretary.
SECTION 3.11. TELEPHONE MEETINGS. Any member of the Board of Directors
may participate in any meeting of such Board 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 any
meeting pursuant to this provision shall constitute presence in person at
such meeting.
SECTION 3.12. INFORMAL 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 the members of the Board consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board.
SECTION 3.13. NOMINATION OF DIRECTOR CANDIDATES. Subject to the rights
of the holders of Preferred Stock or any other class of capital stock of the
Corporation (other than Common Stock) or any series of any of the foregoing
that has been outstanding, nominations for the election of directors may be
made by the Board of Directors, by any duly appointed committee thereof or by
any stockholder entitled to vote for the election of directors. Any
stockholder entitled to vote for the election of directors at any meeting may
nominate persons for
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election as directors only if written notice of such stockholder's intent to
make such nomination is given, either by personal delivery or by United
States Mail, postage prepaid, to the Secretary of the Corporation not later
than ninety (90) days prior to the scheduled meeting, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
PROVIDED, HOWEVER, if less than one hundred (100) days notice or prior public
disclosure of the date of the scheduled meeting is given, notice by the
stockholders must be so delivered or received not later than the close of
business on the tenth (10th) day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the day
on which public disclosure was made. Each such notice shall set forth: (a)
the name, age, business address and residence address of the person or
persons intended to be nominated; (b) a representation that the stockholder
is a holder of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of
all arrangements or understandings between the stockholder and each nominee
and any other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the stockholder; (d)
such other information regarding each nominee proposed by such stockholder as
would have been required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission had such
requirements been applicable and each nominee been nominated, or intended to
be nominated, by the Board of Directors; and (e) the consent of each nominee
to serve as a director of the Corporation if so elected. The Chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with this section.
ARTICLE IV
COMMITTEES
SECTION 4.1. EXECUTIVE COMMITTEE. The Board of Directors, by a
resolution passed by a vote of a majority of the whole Board, may appoint an
Executive Committee of one or more directors, which to the extent permitted
by law and in said resolution shall, during the intervals between the
meetings of the Board of Directors, in all cases where special directions
shall not have been given by the Board, have and exercise the powers of the
Board of Directors, including those powers enumerated in these Bylaws which
are not specifically reserved to the Board of Directors, in the management of
the property, business and affairs of the Corporation; provided, however,
that the Executive Committee shall not have any power or authority to amend
the Certificate of Incorporation, to adopt any agreement of merger or
consolidation, to recommend to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets, to
recommend to the stockholders a dissolution of the Corporation or a
revocation of dissolution, to amend the Bylaws of the Corporation, to declare
a dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger. The Executive Committee shall have power to authorize
the seal of the Corporation to be affixed to all papers which may require it.
The Board of Directors shall appoint the Chairman of the Executive
Committee. The members of the Executive Committee shall receive such
compensation and fees as from time to time may be fixed by the Board of
Directors.
SECTION 4.2. ALTERNATES AND VACANCIES. The Board of Directors may
designate one or more directors as alternate members of the Executive
Committee who may replace any
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absent or disqualified member at any meeting of the Executive Committee. In
the absence or disqualification of a member of the Executive 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 of Directors to act at the meeting in the
place of any such absent or disqualified member. All other vacancies in the
Executive Committee shall be filled by the Board of Directors in the same
manner as original appointments to such Committee.
SECTION 4.3. COMMITTEES TO REPORT TO BOARD. The Executive Committee
shall keep regular minutes of its proceedings and all action by the Executive
Committee shall be reported to the Board of Directors at its meeting next
succeeding such action.
SECTION 4.4. PROCEDURE. The Executive Committee shall fix its own
rules of procedure, and shall meet where and as provided by such rules or by
resolution of the Board of Directors. The presence of a majority of the then
appointed number of each committee created pursuant to this Article IV shall
constitute a quorum and in every case an affirmative vote by a majority of
the members of the committee present and not disqualified from voting shall
be the act of the committee.
SECTION 4.5. OTHER COMMITTEES. From time to time the Board of
Directors by a resolution adopted by a majority of the whole Board may
appoint any other committee or committees for any purpose or purposes, to the
extent lawful, which shall have such powers as shall be determined and
specified by the Board of Directors in the resolution of appointment.
SECTION 4.6. TERMINATION OF COMMITTEE MEMBERSHIP. In the event any
person shall cease to be a director of the Corporation, such person shall
simultaneously therewith cease to be a member of any committee appointed by
the Board of Directors, or any subcommittee thereof.
ARTICLE V
OFFICERS
SECTION 5.1. EXECUTIVE OFFICERS. The executive officers of the
Corporation may consist of a Chairman of the Board, a President and Chief
Executive Officer, one or more Vice Presidents, a Treasurer and a Secretary,
all of whom shall be elected annually by the Board of Directors. Unless
otherwise provided in the resolution of election, each officer shall hold
office until the next annual election of directors and until his successor
shall have been qualified. Any two of such offices may be held by the same
person.
SECTION 5.2. SUBORDINATE OFFICERS. The Board of Directors may appoint
one or more Assistant Secretaries, one or more Assistant Treasurers and such
other subordinate officers and agents as it may deem necessary or advisable,
for such term as the Board of Directors shall fix in such appointment, who
shall have such authority and perform such duties as may from time to time be
prescribed by the Board.
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SECTION 5.3. COMPENSATION. The Board of Directors shall have the
power to fix the compensation of all officers, agents and employees of the
Corporation, which power, as to other than elected officers, may be delegated
as the Board of Directors shall determine.
SECTION 5.4. REMOVAL. All officers, agents and employees of the
Corporation shall be subject to removal, with or without cause, at any time
by affirmative vote of the majority of the whole Board of Directors whenever,
in the judgment of the Board of Directors, the best interests of the
Corporation will be served thereby. The power to remove agents and
employees, other than officers or agents elected or appointed by the Board of
Directors, may be delegated as the Board of Directors shall determine.
SECTION 5.5. CHAIRMAN OF THE BOARD. If a Chairman of the Board is
elected, he shall be chosen from among the members of the Board of Directors
and shall preside at all meetings of the directors and the stockholders of
the Corporation. The Chairman of the Board shall, in general, have
supervisory power over the Chief Executive Officer and all other officers of
the Corporation.
SECTION 5.6. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall be the chief operating officer of the Corporation and shall be
responsible for insuring that the President of the Corporation is capable of
fulfilling his duties to the Corporation and shall perform such other duties
as the Board of Directors shall prescribe.
SECTION 5.7. THE PRESIDENT. The President shall have the general
powers and duties of supervision and management of the Corporation, shall
report directly to the Chief Executive Officer, and shall see that all orders
and resolutions of the Board of Directors are carried into effect. The
President shall preside at all meetings of the stockholders and directors at
which he is present. The President shall also perform such other duties as
may from time to time be assigned to him by the Board of Directors.
SECTION 5.8. VICE PRESIDENTS. Each Vice President shall perform such
duties and shall have such authority as from time to time may be assigned to
him by the Board of Directors or the President.
SECTION 5.9. THE TREASURER. The Treasurer shall have the general care
and custody of all the funds and securities of the Corporation which may come
into his hands and shall deposit the same to the credit of the Corporation in
such bank or banks or depositaries as from time to time may be designated by
the Board of Directors or by an officer or officers authorized by the Board
of Directors to make such designation, and the Treasurer shall pay out and
dispose of the same under the direction of the Board of Directors. He shall
have general charge of all securities of the Corporation and shall in general
perform all duties incident to the position of Treasurer.
SECTION 5.10. THE SECRETARY. The Secretary shall keep the minutes of
all proceedings of the Board of Directors and the minutes of all meetings of
the stockholders and also, unless otherwise directed by such committee, the
minutes of each standing committee, in books provided for that purpose, of
which he shall be the custodian; he shall attend to the giving
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and serving of all notices for the Corporation; he shall have charge of the
seal of the Corporation, of the stock certificate books and such other books
and papers as the Board of Directors may direct; and he shall in general
perform all the duties incident to the office of Secretary and such other
duties as may be assigned to him by the Board of Directors.
SECTION 5.11. VACANCIES. All vacancies among the officers for any cause
shall be filled only by the Board of Directors.
SECTION 5.12. BONDING. The Board of Directors shall have power to require
any officer or employee of the Corporation to give bond for the faithful
discharge of his duties in such form and with such surety or sureties as the
Board of Directors may deem advisable.
ARTICLE VI
STOCK
SECTION 6.1. FORM AND EXECUTION OF CERTIFICATES. The shares of stock of
the Corporation shall be represented by certificates in such form as shall be
approved by the Board of Directors; provided that the Board of Directors of the
Corporation may provide by resolution that some or all of any or all classes or
series of its stock (other than the Common stock of the Corporation) shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation; and, notwithstanding the adoption of such a resolution by the Board
of Directors, every holder of stock represented by certificates and every holder
of uncertificated shares shall be entitled to a certificate or certificates
representing his shares upon delivery of a written request therefor to the
Secretary of the Corporation. The certificates shall be signed by the
President or the Vice President and the Treasurer or the Secretary or an
Assistant Treasurer or Assistant Secretary, except that where any such
certificates shall be countersigned by a transfer agent and by a registrar, the
signatures of any of the officers above specified, and the seal of the
Corporation upon such certificates, may be facsimiles, engraved or printed. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon such 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 its issue.
SECTION 6.2. REGULATIONS. The Board of Directors may make such rules and
regulations consistent with any governing statute as it may deem expedient
concerning the issue, transfer and registration of certificates of stock and
concerning certificates of stock issued, transferred or registered in lieu or
replacement of any lost, stolen, destroyed or mutilated certificates of stock.
SECTION 6.3. FIXING OF RECORD DATE. For the purpose of determining the
stockholders entitled to notice of, and 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 to exercise any rights in respect of any change, conversion or
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exchange of stock, or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a date as the record date for any such
determination of stockholders, and all persons who are stockholders of record
on the date so fixed, and no others, shall be entitled to notice of, and to
vote at, such meeting or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise any
rights in respect of any change, conversion or exchange of stock or to take
any other lawful action, as the case may be. Such record date shall not be
more than sixty (60) days nor less than ten (10) days before the date of any
such meeting, nor more than sixty (60) days prior to any other action,
provided that any record date established by the Board of Directors may not
precede the date of the resolution establishing the record date. The record
date for determining stockholders entitled to consent to corporate actions in
writing shall not be more than ten (10) days after the date upon which the
resolution fixing the record date was adopted. If no record date is
established prior to an action undertaken by consent, the record date shall
be, if no action of the Board of Directors is required, the first date on
which a signed written consent setting forth the action taken is delivered to
the corporation. If action by the Board of Directors is required, the record
date shall be the close of business on the day the board adopts the
resolution taking the prior action.
SECTION 6.4. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint a transfer agent or transfer agents and a registrar or registrars for
any or all classes of the capital stock of the Corporation, and may require
stock certificates of any or all classes to bear the signature of either or
both.
ARTICLE VII
SEAL
SECTION 7.1. SEAL. The seal of the Corporation shall be circular in
form and contain the name of the Corporation, the year of its organization,
and the words "CORPORATE SEAL, DELAWARE", which seal shall be in charge of
the Secretary to be used as directed by the Board of Directors.
ARTICLE VIII
FISCAL YEAR
SECTION 8.1. FISCAL YEAR. The fiscal year of the Corporation shall be
the calendar year unless otherwise fixed by resolution of the Board of
Directors.
ARTICLE IX
WAIVER OF NOTICE
SECTION 9.1. WAIVER OF NOTICE. Any person may waive any notice
required to be given by law, in the Certificate of Incorporation or under
these Bylaws by attendance in person, or by proxy if a stockholder, at any
meeting, except when such person attends a meeting
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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, or by a writing signed by the person or persons entitled to said
notice, whether before or after the time stated in said notice, which waiver
shall be deemed equivalent to such notice. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee appointed by the Board of
Directors need be specified in any written waiver of notice.
ARTICLE X
CHECKS, NOTES, DRAFTS, CONTRACTS, VOTING OF SECURITIES, ETC.
SECTION 10.1. CHECKS, NOTES, DRAFTS, ETC. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers authorized by the Board of Directors to
make such designation.
SECTION 10.2. EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation, to enter into or execute and deliver any
and all deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to specific
instances.
SECTION 10.3. PROVISION REGARDING CONFLICTS OF INTERESTS. No contract
or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction,
or solely because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
(c) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the shareholders.
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Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
SECTION 10.4. VOTING OF SECURITIES OWNED BY THE CORPORATION. Subject
always to the specific directions of the Board of Directors, any share or
shares of stock or other securities issued by any other corporation and owned
or controlled by the Corporation may be voted, whether by written consent as
set forth hereinbelow or at any meeting of such other corporation, by the
President of the Corporation, or in the absence of the President, by any Vice
President of the Corporation who may be present at such meeting or available
to sign such written consent. Whenever in the judgment of the President, or
in his absence, of any Vice President, it shall be desirable for the
Corporation to execute a proxy or give a consent with respect to any share or
shares of stock or other securities issued by any other corporation and owned
by the Corporation, such proxy or consent shall be executed in the name of
the Corporation by the President or one of the Vice Presidents of the
Corporation without necessity of any authorization by the Board of Directors.
Any person or persons so designated as the proxy or proxies of the
Corporation shall have full right, power and authority to vote the share or
shares of stock or other securities issued by such other corporation and
owned by the Corporation.
ARTICLE XI
INDEMNIFICATION AND INSURANCE
SECTION 11.1. THIRD-PARTY ACTIONS. The Corporation shall indemnify and
hold harmless any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed proceeding (other than an
action by or in the right of the Corporation) by reason of the fact that he
or she is or was a director or officer of the Corporation, against expenses
(including reasonable attorneys' fees), judgments, fines, liabilities, losses
and amounts paid in settlement actually and reasonably incurred by him or her
in connection with such proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal proceeding,
had no reasonable cause to believe his or her conduct was unlawful. The
termination of any 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 he or she reasonably believed to be in, or not opposed to, the best
interest of the Corporation, and, with respect to any criminal proceeding,
had reasonable cause to believe that his or her conduct was unlawful.
SECTION 11.2. DERIVATIVE ACTIONS. The Corporation shall indemnify and
hold harmless any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed proceeding by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was a director or officer of the Corporation, against
expenses (including reasonable attorneys' fees) actually and reasonably
incurred by him or her in connection with the defense or settlement of such
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of
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the Corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that
the court in which such proceeding 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 that the court shall deem proper.
SECTION 11.3. RIGHT TO INDEMNIFICATION OF EXPENSES. To the extent that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any proceeding referred to in Sections 11.1 and 11.2 or
in defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including reasonable attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
SECTION 11.4 DETERMINATION OF INDEMNIFICATION. Any indemnification under
Sections 11.1 and 11.2 (unless 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 or she has meet the applicable standards of conduct set forth in
Sections 11.1 and 11.2. Such determination shall be made (A) 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, (B) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (C) by the
stockholders.
SECTION 11.5 EXPENSES OF CONTESTED INDEMNIFICATION CLAIMS. If a claim
under Section 11.1 or 11.2 is not paid in full by the Corporation within thirty
(30) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall also be entitled to be paid the expenses of prosecuting such
claim.
SECTION 11.6 ADVANCEMENT OF EXPENSES. Expenses (including reasonable
attorneys' fees) incurred by a director or officer in defending any proceeding
or prosecuting a claim under Section 11.5 shall be paid by the Corporation in
advance of the final disposition of such proceeding or suit upon receipt of a
written affirmation by the director or officer of his or her good faith belief
that he or she has met the standard of conduct necessary for indemnification and
a written undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Article.
SECTION 11.7 INDEMNIFICATION NOT EXCLUSIVE. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the Certificate
of Incorporation, any other bylaw, 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.
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SECTION 11.8 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article shall, unless otherwise provided when authorized or ratified,
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 person.
SECTION 11.9 EMPLOYEES, AGENTS AND OTHERS. The Corporation may, to the
fullest extent of the provisions of this Article with respect to directors and
officers and to the extent authorized from time to time by the Board of
Directors, grant rights of indemnification and advancement of expenses to any
employee or agent of the Corporation or any other person who 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.
SECTION 11.10 CONTRACT RIGHT. Each of the rights of indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
be a contract right and any repeal or amendment of the provisions of this
Article shall not adversely affect any such right of any person existing at the
time of such repeal or amendment with respect to any act or omission occurring
prior to the time of such repeal or amendment, and further, shall not apply to
any proceeding, irrespective of when the proceeding is initiated, arising from
the service of such person prior to such repeal or amendment.
SECTION 11.11 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 or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the
provisions of this Article.
SECTION 11.12 CERTAIN REFERENCES UNDER ARTICLE XI. For purposes of
this Article, the following references shall have the following meanings:
(A) "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued;
(B) "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan;
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(C) a person who acted in good faith and in a manner he or she
reasonably believed to be in the best 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;"
(D) "other enterprises" shall include employee benefit plans;
(E) "proceeding" shall include any pending or completed action,
suit or proceeding, whether formal or informal or civil, criminal,
administrative, arbitrative or investigative, any appeal in such an action,
suit or proceeding, and any inquiry or investigation that could lead to such
an action, suit or proceeding;
(F) "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation that
imposes duties on, or involves services by, such director, officer, employee
or agent with respect to an employee benefit plan, its participants or
beneficiaries.
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