Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11 Registration Statement for Securities of a Real 318 1.12M
Estate Company
2: EX-1 Underwriting Agreement 24 77K
3: EX-3 Articles of Incorporation/Organization or By-Laws 20 61K
4: EX-5 Opinion re: Legality 3 13K
5: EX-8 Opinion re: Tax Matters 4 14K
6: EX-10.A Material Contract 6 15K
7: EX-10.B Material Contract 5 21K
8: EX-24.B Power of Attorney 1 7K
EX-3 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
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DELAWARE
THE FIRST STATE
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
LIMITED PARTNERSHIP OF "BOSTON CAPITAL TAX CREDIT FUND V L.P.", FILED IN THIS
OFFICE ON THE FIFTEENTH DAY OF OCTOBER, A.D. 2003, AT 1:23 O'CLOCK P.M.
[SEAL] /s/ Harriet Smith Windsor
-------------------------------------------
Harriet Smith Windsor, Secretary of State
3715614 8100 AUTHENTICATION: 2690519
030662487 DATE: 10-15-03
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 01:37 PM 10/15/2003
FILED 01:23 PM 10/15/2003
SRV 030662487 - 3715616 FILE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
BOSTON CAPITAL TAX CREDIT FUND V L.P.
THIS CERTIFICATE, signed and sworn to as of the 15th day of October, 2008
by the undersigned person(s):
W I T N E S S E T H T H A T:
The undersigned, Boston Capital Associates V L.L.C., a limited liability
company of the State of Delaware, as general partner and BCTC V Assignor Corp.,
a Delaware corporation as limited partner, hereby form a limited partnership
pursuant to the Delaware Revised Uniform Limited Partnership Act, as follows:
1. The name of the Partnership is Boston Capital Tax Credit Fund V L.P.
2. The name of the registered agent for service of process in Delaware is
The Corporation Trust Company and the address of the registered office is 1209
Orange Street, Suite 400, County of New Castle, Wilmington, Delaware.
3. The General Partner is Boston Capital Associates V L.L.C., a limited
liability company formed under the laws of the State of Delaware and having its
principal place of business at 1 Boston Place, Suite 2100, Boston, MA
02108-4406.
4. The principal place of business of the Partnership is 1 Boston Place,
Suite 2100, Boston, MA 02108-4406.
IN WITNESS WHEREOF, the general partner hereto has affixed its signature
and seal as of the day and year first written above.
GENERAL PARTNER:
By: Boston Capital Associates V L.L.C.
By: /s/ John P. Manning
----------------------------------
John P. Manning, its managing member
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DELAWARE
THE FIRST STATE
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
FORMATION OF "BOSTON CAPITAL ASSOCIATES V L.L.C.", FILED IN THIS OFFICE ON THE
FIFTEENTH DAY OF OCTOBER, A.D. 2003, AT 1:22 O' CLOCK P.M.
[SEAL] /s/ Harriet Smith Windsor
-----------------------------------------
Harriet Smith Windsor, Secretary of State
3715613 8100 AUTHENTICATION: 2690516
030662484 DATE: 10-15-03
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 01:37 PM 10/15/2003
FILED 01:22 PM 10/15/2003
SRV 030662484 - 3715613 FILE
CERTIFICATE OF FORMATION
OF
BOSTON CAPITAL ASSOCIATES V L.L.C.
Pursuant to the Delaware Limited Liability Company Act, the undersigned
hereby form a limited liability company with the following terms:
1. NAME. The name of the limited liability company is Boston Capital
Associates V L.L.C. (the "LLC").
2. OFFICE OF THE LLC. The office address of the registered office of the LLC
in the State of Delaware is 1209 Orange Street, Wilmington, New Castle County,
Delaware.
3. NAME AND ADDRESS OF RESIDENT AGENT. The resident agent for service of
process in the State of Delaware is The Corporation Trust Company, 1209 Orange
Street, Wilmington, New Castle County, Delaware.
4. MEMBERS OF THE LLC. The LLC has two (2) members. The members of the LLC are
Boston Capital Companion Limited Partnership, a Massachusetts limited
partnership and John P. Manning.
5. MANAGING MEMBER OF THE LLC. The managing member of the LLC is
John P. Manning.
IN WITNESS WHEREOF, the undersigned hereby affirms under the penalties of
perjury that the facts stated herein are true as of the 15th day of October,
2003.
By: /s/ John P. Manning
--------------------------------
John P. Manning, Member
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DELAWARE
THE FIRST STATE
I, HARRIET SMITH WINDSOR, 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 "BCTC V ASSIGNOR CORP.", FILED IN THIS OFFICE ON THE FIFTEENTH
DAY OF OCTOBER, A.D. 2003, AT 1:20 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Harriet Smith Windsor
-------------------------------------------
Harriet Smith Windsor, Secretary of State
3715612 8100 AUTHENTICATION: 2690527
030662482 DATE: 10-15-03
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 01:38 PM 10/15/2003
FILED 01:20 PM 10/15/2003
SRV 030662482 - 3715612 FILE
CERTIFICATE OF INCORPORATION
OF
BCTC V ASSIGNOR CORP.
The undersigned, 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 I, 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:
ARTICLE I
NAME
Section 10.01. The name of the Corporation is BCTC V ASSIGNOR CORP.
(hereinafter referred to as the "Corporation").
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
Section 2.01. The address, including street, number, city, and county, of
the registered office of the corporation in the State of Delaware is 1209 Orange
Street, City of Wilmington 19808, County of New Castle; and the name of the
registered agent of the corporation in the State of Delaware at such address is
The Corporation Trust Company.
ARTICLE III
PURPOSE
Section 8.01. The nature or purpose of the business: to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
STOCK
Section 4.01. The Corporation shall be authorized to issue only one (1)
class of stock, to wit: Common Stock. The total number of shares of Common Stock
which the Corporation shall have authority to issue is One Thousand (1,000), the
shares shall have no par value.
ARTICLE V
BOOKS AND RECORDS
Section 5.01. The books and records of the Corporation shall be kept at the
principal place of business of the Corporation, whether or not in the State of
Delaware, or at such other place or places, whether or not in the State of
Delaware, as may be designated from time to time by the Board of Directors.
ARTICLE VI
INCORPORATOR
Section 6.01. NAME AND ADDRESS. The name and mailing address of the
incorporator is as follows:
NAME MAILING ADDRESS
John P. Manning One Boston Place, suite 2100
Boston, MA 02108-4406
Section 6.02. POWERS OF INCORPORATOR. The powers of the incorporator shall
terminate upon the filing of the Certificate of Incorporation.
ARTICLE VII
INITIAL DIRECTOR
Section 7.01. The names and addresses of the persons who are to serve as
directors until the first annual meeting of stockholders or until their
successors are elected and shall qualify are as follows:
NAME MAILING ADDRESS
John P. Manning One Boston Place, suite 2100
Boston, MA 02108-4406
ARTICLE VIII
AUTHORITY OF BOARD OF DIRECTORS
Section 8.01. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to:
(a) to make, adopt, alter, amend or repeal the By-laws of the
Corporation, and
(b) adopt from time to time By-law provisions with respect to
indemnification of directors, officers, employees, agents and
other persons as it shall deem expedient and in the best
interests of the Corporation and to the extent permitted by law.
ARTICLE IX
ELECTIONS OF DIRECTORS
Section 9.01. Elections of directors need not be by written ballot unless
the By-laws of the Corporation shall so provide.
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ARTICLE X
COMPROMISE AND ARRANGEMENT
Section 10.01. 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 5 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 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 the 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 a consequence of such compromise or
arrangement, the said compromise or arrangement and the said organization
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.
ARTICLE XI
LIABILITY OF DIRECTORS
Section 11.01. The personal liability of the Corporation's directors to the
Corporation or its stockholders shall be eliminated to the full extent permitted
by the General Corporation Law of the State of Delaware (including, without
limitation, Section 102(b)(7) thereof), as amended from time to time.
Section 11.02. The Corporation shall, to the fullest extent permitted by
the General Corporation Law of the State of Delaware (including, without
limitation, Section 145 thereof), as the same may be amended from time to time,
indemnify any promoter, director, or officer whom it shall have power to
indemnify from and against any and all of the expenses, liabilities or other
loss of any nature, 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 or her 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 promoter, director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person.
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IN WITNESS WHEREOF, the undersigned, being the incorporator herein before
named, has executed and acknowledged this Certificate of Incorporation this 15th
day of October 2003.
/s/ John P. Manning
---------------------------------
John P. Manning, Incorporator
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BCTC V ASSIGNOR CORP.
----------
BY-LAWS
ARTICLE I
OFFICES
Section 1.01. REGISTERED OFFICE. The address, including street, number,
city, and county, of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington 19801, County of New Castle.
Section 1.02. ADDITIONAL OFFICES. 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 as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. TIME AND PLACE. All meetings of stockholders for the election
of Directors shall be held at such time and place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver
of notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place either within or without the State of Delaware as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice of the meeting.
Section 2.02. ANNUAL MEETING. Annual meetings of stockholders shall be held
for the purpose of electing a Board of Directors and transacting such other
business as may properly be brought before the meeting.
Section 2.03. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10)
(unless a longer period is required by law) nor more than fifty (50) days prior
to the meeting.
Section 2.04. SPECIAL MEETING. 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 the Chairman of the Board, if
any, or, if the Chairman is not present (or, if there is none), by the President
and shall be called by the President or
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Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of the stockholders owning a majority of the shares of
capital stock of the Corporation issued and outstanding and entitled to vote at
such meeting. Such request shall state the purpose or purposes of the proposed
meeting. The person calling such meeting shall cause notice of the meeting to be
given in accordance with the provisions of Section 2.05 of this Article II and
of Article V.
Section 2.05. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be delivered either
personally or mailed to his last address to each stockholder not less than ten
(10) (unless a longer period is required by law) nor more than fifty (50) days
prior to the meeting.
Section 2.06. LIST OF STOCKHOLDERS. The Officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, 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 registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, at
a place within the city where the meeting is to be held. Such place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the time and place of the meeting
during the whole time of the meeting and may be inspected by any stockholder who
is present.
Section 2.07. PRESIDING OFFICER. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or if the Chairman is not present (or
if there is none), by the President, or, if the President is not present, by a
Vice President, or, if a Vice President is not present, by such person who may
have been chosen by the Board of Directors, or, if none of such persons is
present, by a Chairman to be chosen by the stockholders owning a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at the meeting and who are present in person or represented by proxy.
The Secretary of the Corporation, or, if the Secretary is not present, an
Assistant Secretary, or, if an Assistant Secretary is not present, such person
as may be chosen by the Board of Directors, shall act as secretary of meetings
of stockholders, or, if none of such persons is present, the stockholders owning
a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy shall choose any person present to act as secretary of the
meeting.
Section 2.08. QUORUM AND ADJOURNMENTS. The holders of a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at stockholders meetings, present in person or represented by proxy,
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. The stockholders present in
person or represented by proxy at a duly organized meeting may continue to do
business until final adjournment of such meeting whether on the same day or on a
later day, notwithstanding the withdrawal of enough stockholders to leave less
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than a quorum. If a meeting cannot be organized because a quorum has not
attended, those present in person or represented by proxy may adjourn the
meeting from time, until a quorum shall be present or represented. Notice of the
adjourned meeting need not be given if the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is taken. Even if
a quorum shall be present or represented at any meeting of the stockholders, the
stockholders entitled to vote at such meeting, present in person or represented
by proxy, may adjourn the meeting from time to time without notice of the
adjourned meeting if the time and place of the adjourned meeting are announced
at the meeting at which the adjournment is taken, until a date which is not more
than thirty (30) days after the date of the original meeting. At any adjourned
meeting at which a quorum is present in person or represented by proxy any
business may be transacted which might have been transacted at the meeting as
originally called. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at such meeting.
Section 2.09. VOTING.
(a) At any meeting of stockholders, every stockholder having the
right to vote shall be entitled to vote in person or by proxy, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period. Except as otherwise provided by law or the
Certificate of Incorporation, each stockholder of record shall be entitled to
one (1) vote for each share of capital stock registered in his name on the books
of the Corporation.
(b) At a meeting at which a quorum is present, all elections of
Directors shall be determined by a plurality vote, and, except as otherwise
provided by law or the Certificate of Incorporation, all other matters shall be
determined by a vote of a majority of the shares present in person or
represented by proxy and voting on such other matters.
Section 2.10. CONSENT. Unless otherwise provided in the Certificate of
Incorporation, any action required or permitted by law or the Certificate of
Incorporation to be taken at any meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a written
consent, 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 on such action were present or represented by proxy and voted.
Such written consent shall be filed with the minutes of meetings of
stockholders. 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 so consented in writing.
ARTICLE III
DIRECTORS
Section 3.01. NUMBER AND TENURE. There shall be such number of Directors,
not less than one (1), as shall from time to time be fixed by the stockholders
at the annual meeting or at any special meeting called for such purpose. The
Directors shall be elected at
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the annual meeting of the stockholders, except for initial directors named in
the Certificate of Incorporation or elected by the incorporator, and except as
provided in Section 3.02 of this Article, and each Director elected shall hold
office until his successor is elected and shall qualify. Directors need not be
stockholders.
Section 3.02. VACANCIES. If any vacancies occur in the Board of Directors,
or if any new Directorships are created, they shall be filled by a majority of
the Directors then in office, though less than a quorum, or by a sole remaining
Director. Each Director so chosen shall hold office until the next annual
election of Directors and until his successor is duly elected and shall qualify.
If there are no Directors in office, any Officer or stockholder may call a
special meeting of stockholders in accordance with the provisions of the
Certificate of Incorporation or these By-laws, at which meeting such vacancies
shall be filled.
Section 3.03. RESIGNATION. Any Director may resign at any time by giving
written notice to the Chairman of the Board, the President or the Secretary of
the Corporation, or, in the absence of all of the foregoing, by notice to any
other director or officer of the Corporation. Unless otherwise specified in such
written notice, a resignation shall take effect upon delivery to the designated
director or officer. It shall not be necessary for a resignation to be accepted
before it becomes effective.
Section 3.04. PLACE OF MEETINGS. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 3.05. ANNUAL MEETING. Unless otherwise agreed by the newly elected
Directors, the annual meeting of each newly elected Board of Directors shall be
held immediately following the annual meeting of stockholders, and no notice of
such meeting to either incumbent or newly elected Directors shall be necessary.
Section 3.06. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice, at such time and place as may from time to time be
determined by the Board of Directors.
Section 3.07. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President on two (2) days'
notice to each Director, if such notice is delivered personally or sent by
telegram, or on five (5) days' notice if sent by mail. Special meetings shall be
called by the Chairman of the Board or the President in like manner and on like
notice on the written request of one-half or more of the number of Directors
then in office. The purpose of a special meeting of the Board of Directors need
not be stated in the notice of such meeting.
Section 3.08. QUORUM AND ADJOURNMENTS. Unless otherwise provided by the
Certificate of Incorporation, at all meetings of the Board of Directors,
one-half of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that when the board consists of one
(1) Director, then one (1) Director shall constitute a quorum. If a quorum is
not present at any meeting of the Board of Directors, the Directors present may
adjourn the meeting, from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
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Section 3.09. PRESIDING OFFICER. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board, if any, or if the Chairman is not
present (or if there is none), by the President, or, if the President is not
present, by such person as the board may appoint for the purpose of presiding at
the meeting from which the President is absent.
Section 3.10. ACTION BY CONSENT. 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 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. Such consent shall
have the same force and effect as the unanimous vote of the Board of Directors.
Section 3.11. TELEPHONE MEETINGS. 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, and such participation in a meeting shall
constitute presence in person at the meeting.
ARTICLE IV
COMMITTEES
Section 4.01. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one (1) or more
committees, each committee to consist of one (1) or more Directors of the
Corporation. The Board of Directors may designate one (1) or more persons who
are not Directors as additional members of any committee, but such persons shall
be non-voting members of such committee. The Board of Directors may designate
one (1) 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 of
the committee present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority 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; but no
such committee shall have power or authority to amend the Certificate of
Incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, elect or remove Officers or
Directors, or amend the By-laws of the Corporation; and, unless the resolution
or the Certificate of Incorporation expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Such committee or committees shall have such name or
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names as may be determined from time to time by resolution adopted by the Board
of Directors.
Section 4.02. MINUTES OF COMMITTEE MEETINGS. Unless otherwise provided in
the resolution of the Board of Directors establishing such committee, each
committee shall keep minutes of action taken by it and file the same with the
Secretary of the Corporation.
Section 4.03. QUORUM. A majority of the number of Directors constituting
any committee shall constitute a quorum for the transaction of business, and the
affirmative vote of such Directors present at the meeting shall be required for
any action of the committee; provided, however, that, when a committee of one
(1) member is authorized under the provisions of Section 4.01 of this Article,
such one (1) member shall constitute a quorum.
Section 4.04. VACANCIES, CHANGES, AND DISCHARGE. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of, and to discharge any committee.
Section 4.05. COMPENSATION. The Board of Directors, by the affirmative vote
of a majority of the Directors then in office and irrespective of the personal
interest of any director, shall have authority to establish reasonable
compensation for committee members for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
ARTICLE V
NOTICES
Section 5.01. FORM AND DELIVERY.
(a) Whenever, under the provisions of law, the Certificate of
Incorporation or these By-laws, notice is required to be given to any
stockholder, it shall not be construed to mean personal notice unless otherwise
specifically provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such stockholder, at his address as
it appears on the records of the Corporation. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, with postage
prepaid.
(b) Whenever, under the provisions of law, the Certificate of
Incorporation, or these By-laws, notice is required to be given to any director,
it shall not be construed to mean personal notice unless otherwise specifically
provided, but such notice may be given in writing, by mail, telecopy, telegram
or messenger addressed to such director at the usual place of residence or
business of such director as in the discretion of the person giving such notice
will be likely to be received most expeditiously by such director. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mail, with postage prepaid. Notice to a director may also be given personally or
be sent to such address.
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Section 5.02. WAIVER. Whenever any notice is required to be given under the
provisions of law, the Certificate of Incorporation or these By-laws, a written
waiver of notice, signed by the person or persons entitled to said notice,
whether before or after the time for the meeting stated in such notice, shall be
deemed equivalent to such notice.
ARTICLE VI
OFFICERS
Section 6.01. DESIGNATIONS. The Officers of the Corporation shall be chosen
by the Board of Directors and shall be a President and a Secretary. The Board of
Directors may also choose a Chairman of the Board, one (1) or more Vice
Presidents, a Treasurer, one (1) or more Assistant Secretaries and one (1) or
more Assistant Treasurers and other officers and agents as it shall deem
necessary or appropriate. Any officer of the Corporation shall have the
authority to affix the seal of the Corporation and to attest the affixing of the
seal by his signature. All officers and agents of the Corporation shall exercise
such powers and perform such duties as shall from time to time be determined by
the Board of Directors.
Section 6.02. TERM OF OFFICE AND REMOVAL. The Board of Directors at its
annual meeting after each annual meeting of stockholders or at a meeting called
for that purpose shall choose Officers and agents, if any, in accordance with
the provisions of Section 6.01. Each Officer of the Corporation shall hold
office until his successor is elected and shall qualify. Any officer or agent
elected or appointed by the Board of Directors may be removed, with or without
cause, at any time by the affirmative vote of a majority of the Directors then
in office. Any vacancy occurring in any office of the Corporation may be filled
for the unexpired portion of the term by the Board of Directors.
Section 6.03. COMPENSATION. The salaries of all officers and agents, if
any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that he is also a director of the Corporation.
Section 6.04. THE CHAIRMAN OF THE BOARD AND THE PRESIDENT. The Chairman of
the Board shall be the chief executive officer of the Corporation. If there is
no Chairman of the Board, the President shall be the chief executive officer of
the Corporation. The duties of the Chairman of the Board, and of the President
at the direction of the Chairman of the Board, shall be the following:
(i) Subject to the direction of the Board of Directors,
to have general charge of the business, affairs and property of the Corporation
and general supervision over its other officers and agents and, in general, to
perform all duties incident to the office of Chairman of the Board (or
President, as the case may be) and to see that all orders and resolutions of the
Board of Directors are carried into effect.
(ii) Unless otherwise prescribed by the Board of Directors,
to have full power and authority on behalf of the Corporation to attend, act and
vote at any meeting of security holders of other Corporations in which the
Corporation may hold securities. At such meeting the Chairman of the Board (or
the President, as the case may
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be) shall possess and may exercise any and all rights and powers incident to the
ownership of such securities which the Corporation might have possessed and
exercised if it had been present. The Board of Directors may from time to time
confer like powers upon any other person or persons.
(iii) To preside over meetings of the stockholders and of
the Board of Directors, to call special meetings of stockholders, to be an
ex-officio member of all committees of the board, and to have such other duties
as may from time to time be prescribed by the Board of Directors.
Section 6.05. THE VICE PRESIDENT. The Vice President, if any (or in the
event there be more than one (1), the Vice Presidents in the order designated,
or in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the President and shall generally
assist the President and perform such other duties and have such other powers as
may from time to time be prescribed by the Board of Directors.
Section 6.06. THE SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all votes and the
proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for any committees of the Board of Directors, if requested
by such committee. He shall give, or cause to be given, notice of all meetings
of stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may from time to time be prescribed by the Board of
Directors or the President, under whose supervision he shall act. He shall have
custody of the seal of the Corporation, and he, or an Assistant Secretary, shall
have authority to affix the same to any instrument requiring it, and, when so
affixed, the seal may be attested by his signature or by the signature of such
Assistant Secretary.
Section 6.07. THE ASSISTANT SECRETARY. The Assistant Secretary, if any (or
in the event there be more than one (1), the Assistant Secretaries in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors.
Section 6.08. THE TREASURER. The Treasurer, if any, shall have the custody
of the corporate funds and other valuable effects, including securities, and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may from time to time be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at regular meetings of the board, or whenever they may
require it, an account of all his transactions as Treasurer and of the financial
condition of the Corporation.
Section 6.09. THE ASSISTANT TREASURER. The Assistant Treasurer, if any, (or
in the event there be more than one (1), the Assistant Treasurers in the order
designated, or in
8
the absence of any designation, in the order of their election), shall, in the
absence of the Treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as may from time to time be
prescribed by the Board of Directors.
Section 6.10. CHAIRMAN OF THE BOARD. If a Chairman of the Board shall be
elected by the Board of Directors, the Chairman of the Board shall preside over
meetings of the stockholders and of the Board of Directors, shall call special
meetings of stockholders, shall be an ex-officio member of all committees of the
board, and shall have such other duties as may from time to time be prescribed
by the Board of Directors or the President. In the absence of a Chairman of the
Board, the above described duties shall be carried out by the President.
Section 6.11. TRANSFER OF AUTHORITY. In case of the absence of any officer
or for any other reason that the Board of Directors deems sufficient, the Board
of Directors may transfer the powers or duties of that officer to any other
officer or to any director or employee of the Corporation, provided a majority
of the full Board of Directors concurs.
ARTICLE VII
STOCK CERTIFICATES
Section 7.01. FORM AND SIGNATURES. Every holder of stock in the Corporation
shall be entitled to have a certificate, signed by or in the name of the
Corporation, by the Chairman of the Board, the President or a Vice President and
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Corporation, certifying the number and class (and series, if any) of
shares owned by him, and bearing the seal of the Corporation. Such seal and any
or all of the signatures on the 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.
Section 7.02. REGISTRATION OF TRANSFER. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation or its transfer
agent to issue a new certificate to the person entitled thereto, to cancel the
old certificate and to record the transaction upon its books.
Section 7.03. REGISTERED STOCKHOLDERS. Except as otherwise provided by law,
the Corporation shall be entitled to recognize the exclusive right of a person
who is registered on its books as the owner of shares of its capital stock to
receive dividends or other distributions, to vote as such owner, and to hold
liable for calls and assessments a person who is registered on its books as the
owner of shares of its capital stock. The Corporation shall not be bound to
recognize any equitable, legal, or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
9
Section 7.04. ISSUANCE OF CERTIFICATE. No certificate shall be issued for
any share until (i) consideration for such share in the form of cash, services
rendered, personal or real property, leases of real property or a combination
thereof in an amount not less than the par value or stated capital of such share
has been received by the Corporation and (ii) the Corporation has received a
binding obligation of the subscriber or purchaser to pay the balance of the
subscription or purchase price.
Section 7.05. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen, or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require, and to give the Corporation a bond in
such sum, or other security in such form as it may direct, as indemnity against
any claim that may be made against the Corporation on account of the alleged
loss, theft or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS.
(a) 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,
arbitrative 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, 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 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, except in such cases as involve gross negligence or willful
misconduct.
(b) 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,
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
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the
10
performance of his duty to the Corporation unless and only to the extent that
the 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 the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) Expenses incurred 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 the director, officer, employee or agent 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.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. FISCAL YEAR. The fiscal year of the Corporation shall be as
determined from time to time by the Board of Directors.
Section 9.02. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Delaware." The seal or any facsimile thereof may be, but need not be,
unless required by law, impressed or affixed to any instrument executed by an
officer of the Corporation.
ARTICLE X
AMENDMENTS
Section 10.01. These By-laws may be altered, amended or repealed or new
By-laws may be adopted by the stockholders or by the Board of Directors, to the
extent that such power is conferred upon the Board of Directors by the
Certificate of Incorporation, at any regular meeting of the stockholders or of
the Board of Directors or at any special meeting of the stockholders or of the
Board of Directors if notice of such proposed alteration, amendment, repeal or
adoption of new By-laws be contained in the notice of such special meeting.
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