Registration of Securities (General Form) — Form 10
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-12G General Form for Registration of Securities 76 435K
2: EX-2.1 Agreement and Plan of Merger 39 192K
3: EX-3.1 Certificate of Incorporation 2 14K
4: EX-3.2 By-Laws 11 50K
5: EX-4.1 Convertible Debenture Note 15 71K
6: EX-4.2 Convertible Debenture Note 15 72K
7: EX-4.3 Securities Purchase Agreement 23 110K
8: EX-4.4 Agreement 13 52K
9: EX-4.5 Hollinger Pledge and Security Agreement 5 18K
10: EX-4.6 Certificate of Designation 16 72K
11: EX-9.1 Voting Trust and Stockholders' Agreement 7 31K
12: EX-9.2 Voting and Shareholders Agreement 7 32K
13: EX-9.3 Shareholders Agreement 6 24K
14: EX-10.1 Employment Agreement 16 50K
20: EX-10.10 Warrant 13 61K
21: EX-10.11 Warrant Certificate No. Pv-1 12 50K
22: EX-10.12 Warrant Certificate No. Pv-2 12 51K
15: EX-10.2 Separation Agreement 9 42K
16: EX-10.3 Employment Agreement 15 44K
17: EX-10.4 1999 Stock Incentive Plan 10 48K
18: EX-10.5 Investment Agreement 47 208K
19: EX-10.9 Common Stock Purchase Option 14 68K
23: EX-16.1 Letter Re: Change of Certifying Accountant 1 10K
24: EX-27 Financial Data Schedule 1 12K
EX-3.2 — By-Laws
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BY-LAWS
OF
AMERICAN INTERACTIVE MEDIA, INC.,
a Delaware corporation
ARTICLE I:
Stockholders' Meetings
1. Places of meetings. All meetings of stockholders shall be held at such
place or places in or outside of Delaware as the Board of Directors may from
time to time determine or as may be designated in the notice of meeting or
waiver of notice thereof, subject to any provisions of the laws of Delaware.
2. Annual meetings. Unless otherwise determined from time to time by the
Board of Directors, the annual meeting of stockholders for the election of
directors and the transaction of such other business as may properly come before
the meeting shall be held each year on the first Monday in the fourth month
following the close of the fiscal year commencing at some time between 10 A.M.
and 4 P.M., if not a legal holiday and if a legal holiday, then on the day
following at the same time. If the annual meeting is not held on the date
designated, it may be held as soon thereafter as convenient and shall be called
the annual meeting. Written notice of the time and place of the annual meeting
shall be given by mail to each stockholder entitled to vote, at such
stockholder's address as it appears on the records of the Corporation, not less
than the minimum nor more than the maximum number of days permitted under the
laws of Delaware prior to the scheduled date thereof, unless such notice is
waived as provided by Article VIII of these By-Laws.
3. Special meetings. A special meeting of the stockholders (i0) may be
called at any time by order of the Board of Directors or the executive committee
and, (ii0) shall be called by the Chief Executive Officer, the President or
Secretary or an assistant secretary at the written request of the holders of at
least 25% of the total number of shares of stock then outstanding and entitled
to vote, which request shall state the specific purposes thereof. Written notice
of the time, place and specific purposes of such meetings shall be given by mail
to each stockholder entitled to vote thereat, at his address as it appears on
the records of the Corporation, not less than the minimum nor more than the
maximum number of days prior to the scheduled date thereof permitted under the
laws of Delaware, unless such notice is waived as provided in Article VIII of
these By-Laws.
4. Meetings without notice. Meetings of the stockholders may be held at any
time without notice when all the stockholders entitled to vote thereat are
present in person or by proxy.
5. Voting. At all meetings of stockholders, each stockholder entitled to
vote thereat as determined under Article V Section 3 of these By-Laws, or if not
so determined as prescribed under the laws of Delaware, shall be entitled to one
vote for each share of stock standing on record in his name, subject to any
restrictions or qualifications set forth in the Certificate of Incorporation or
any amendment thereto.
6. Quorum. At any stockholders' meeting, a majority of the number of shares
of stock outstanding and entitled to vote thereat, whether present in person or
by proxy shall constitute a quorum, but a smaller interest may adjourn any
meeting from time to time, and the meeting may be held as adjourned without
further notice, subject to such limitation as may be imposed under the laws of
Delaware. When a quorum is present at any meeting, a majority of the number of
shares of stock entitled to vote and which are present at such meeting shall
decide any question brought before such meeting unless the question is one upon
which a different vote is required by express provision of the laws of Delaware,
the Certificate of Incorporation or these By-Laws, in which case such express
provisions shall govern.
7. List of stockholders. At least ten days before every meeting, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
or the transfer agent in charge of the stock ledger of the Corporation. Such
list shall be open for examination by any stockholder as required by the laws of
Delaware. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of the Corporation or to
vote in person or by proxy at such meeting.
8. Consents in lieu of meeting. Unless otherwise provided in the
Certificate of Incorporation or any amendment thereto or by the laws of
Delaware, any action required by the laws of Delaware to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if: (i0) a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted; and (ii0) prompt notice of the taking of such
action by less than unanimous written consent is given to the other stockholders
to the extent and in the manner required by the laws of Delaware.
ARTICLE II:
Board of Directors
1. (a) Number and qualification. A Board of Directors shall be elected at
each annual meeting of stockholders, each director so elected to serve until the
election and qualification of his successor or until his earlier resignation or
removal as provided in these By-Laws. The initial number of directors shall be
such as may be determined by the incorporators unless such number is already
determined in the Certificate of Incorporation, and thereafter the number of
directors shall be five unless such number shall be increased under Section 1(b)
hereof or by a vote of at least 75% of the entire Board of Directors. In case of
any increase in the number of directors between elections by the stockholders,
the additional directorships shall be considered vacancies and shall be filled
in the manner prescribed in Article IV of these By-Laws. Directors need not be
stockholders. The initial Board of Directors shall be elected by the
incorporators, unless such directors are named in the Certificate of
Incorporation. Any stockholder who holds a contractual right to designate a
representative to the Board of Directors shall have the right to have his/her
nominee to the Board of Directors presented to the stockholders in the same
manner in which a nominee to the Board of Directors would customarily be
presented to the stockholders for the election of directors.
(b) Additional Nominees of the Pioneer Partnership and Hollinger On Certain
Events of Default. In the event that (i) the Corporation shall default in the
due and punctual payment of any installment of the cumulative dividends on the
Series A Senior Convertible Preferred Stock, par value
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$1.00 per share (the "Series A Preferred Stock") when and as the same shall
become due and payable, (ii) such default shall continue for 30 days and (iii)
provided the Pioneer Ventures Associates Limited Partnership (the "Pioneer
Partnership") and/or its limited partners shall be the holder(s) of an aggregate
of at least five (5%) percent of the outstanding Series A Preferred Stock
(included in such 5% calculation for the denominator shall be any Preferred
Stock which has then been converted into Common Stock of the Corporation) the
Pioneer Partnership shall have the right to nominate, and the Board of Directors
of Company shall use its best efforts to have promptly elected or appointed,
such number of individuals nominated by the Pioneer Partnership as shall be
equal to the number of Directors who are designees of Hollinger Digital, Inc.
("Hollinger"); provided, however, that the aggregate number of Directors that
are designees of the Pioneer Partnership or Hollinger shall then constitute a
simple majority of the Corporation's Board of Directors. If this is not the
case, the Board of Directors shall appoint as Directors such additional number
of designees of the Pioneer Partnership and Hollinger as shall be necessary to
ensure that (i) Pioneer and Hollinger shall have an equal number of designees
duly appointed as Directors and (ii) the Pioneer and Hollinger designees on the
Board shall constitute a simple majority of the Board of Directors, for so long
thereafter as the Pioneer Partnership shall own any Series A Preferred Stock or
Common Stock of the Corporation.
2. Powers. The business and affairs of the Corporation shall be carried on
by or under the direction of the Board of Directors, which shall have all the
powers authorized by the laws of Delaware, subject to such limitations as may be
provided by the Certificate of Incorporation or these By-Laws.
3. Compensation. The Board of Directors may from time to time by resolution
authorize the payment of fees or other compensation to the directors for
services as such to the Corporation, including, but not limited to, fees for
attendance at all meetings of the Board or of the executive or other committees,
and determine the amount of such fees and compensation. Directors shall in any
event be paid their traveling expenses for attendance at all meetings of the
Board or of the executive or other committees. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor in amounts authorized or otherwise
approved from time to time by the Board or the executive committee.
4. Meetings and quorum. Meetings of the Board of Directors may be held
either in or outside of Delaware. A quorum shall be one-third the then
authorized total number of directors, but not less than two directors. A
director will be considered present at a meeting, even though not physically
present, if such director participates in the meeting to the extent and in the
manner authorized by the laws of Delaware.
The Board of Directors elected at any annual stockholders' meeting shall,
at the close of that stockholders' meeting, without further notice if a quorum
of directors be then present or as soon thereafter as may be convenient, hold a
meeting for the election of officers and the transaction of any other business.
At such meeting the directors shall elect a Chief Executive Officer, a
President, a Secretary and a Treasurer, and such other officers as they may deem
proper, provided that the directors may elect a Chairman of the Board in lieu of
a Chief Executive Officer or President. None of the officers so elected, except
the Chairman of the Board, if elected, need be members of the Board of
Directors.
The Board of Directors may from time to time provide for the holding of
regular meetings with or without notice and may fix the times and places at
which such meetings are to be held. Meetings other than regular meetings may be
called at any time by the President, the Chief Executive Officer or the
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Chairman of the Board and must be called by the Chief Executive Officer, the
President or by the Secretary or an assistant secretary upon the request of any
director.
Notice of each meeting, other than a regular meeting (unless required by
the Board of Directors), shall be given to each director by mailing the same to
each director at his residence or business address at least two days before the
meeting or by delivering the same to him personally or by telephone or telegraph
to him at least one day before the meeting unless, in case of exigency, the
Chairman of the Board, the Chief Executive Officer, the President or Secretary
shall prescribe a shorter notice to be given personally or by telephone,
telegraph, cable or wireless to all or any one or more of the directors at their
respective residences or places of business.
Notice of any meeting shall state the time and place of such meeting, but
need not state the purpose thereof unless otherwise required by the laws of
Delaware, the Certificate of Incorporation, the By-Laws, or the Board of
Directors.
5. Executive Committee. The Board of Directors may by resolution passed by
a majority of the whole Board provide for an executive committee of two or more
directors and shall elect the members thereof to serve during the pleasure of
the Board and may designate one of such members to act as Chairman. The Board
may at any time change the membership of the committee, fill vacancies in it,
designate alternate members to replace any absent or disqualified members at any
meeting of the committee, or dissolve it.
During the intervals between the meetings of the Board of Directors, the
executive committee shall possess and may exercise any or all of the powers of
the Board of Directors in the management or direction of the business and
affairs of the Corporation and under the By-Laws to the extent authorized by
resolution adopted by a majority of the entire Board of Directors, subject to
such limitations as may be imposed by the laws of Delaware.
The executive committee may determine its rules of procedure and the notice
to be given of its meetings, and it may appoint such committees and assistants
as it shall from time to time deem necessary. A majority of the members of the
committee shall constitute a quorum.
6. Compensation Committee. The Board of Directors has established the
Compensation Committee which shall have a maximum of three members from the
Board of Directors: (a) designee of the Pioneer Partnership, (b) a designee of
Hollinger and (c) one other independent person selected by the Board of
Directors. The Compensation Committee shall consider and recommend to the Board
of Directors matters concerning the compensation of executives, awards of stock
options and other incentive compensation. The Corporation shall not grant any
options, warrants or rights to purchase any securities of the Corporation to any
employee of or consultant to the Corporation or grant any salary increase in
excess of ten percent (10%) on an annual basis to any employee without the
affirmative vote of a majority of the Compensation Committee.
7. Audit Committee. The Board of Directors has established the Audit
Committee which shall have a maximum of three members from the Board of
Directors: (a) designee of the Pioneer Partnership, (b) a designee of Hollinger
and (c) one other independent person selected by the Board of Directors
8. Other committees. The Board of Directors may by resolution provide for
such other committees as it deems desirable and may discontinue the same at its
pleasure. Each such committee
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shall have the powers and perform such duties, not inconsistent with law, as may
be assigned to it by the Board.
9. Action without meetings. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken by
signed written consent of all of the directors entitled to vote with respect to
the subject matter thereof, which consent shall set forth the action so taken,
and shall be filed with the minutes of the Corporation.
ARTICLE III:
Officers
1. Titles and election. The officers of the Corporation shall be a Chief
Executive Officer (or in the absence of a Chief Executive Officer, a Chairman of
the Board who shall have all the powers and authority of a Chief Executive
Officer), a President, a Secretary and a Treasurer, each of whom shall initially
be elected by the Board of Directors as soon as convenient, and thereafter, in
the absence of earlier resignations or removals, shall be elected at the first
meeting of the Board following each annual stockholders' meeting, each of whom
shall hold office at the pleasure of the Board except as may otherwise be
approved by the Board or executive committee, or until his earlier resignation,
removal under these By-Laws or other termination of his employment. Any person
may hold more than one office if the duties can be consistently performed by the
same person, and to the extent permitted by the laws of Delaware.
The Board of Directors, in its discretion, may also at any time elect or
appoint a Chairman of the Board of Directors who shall be a director, and one or
more vice presidents, assistant secretaries and assistant treasurers and such
other officers as it may deem advisable, each of whom shall hold office at the
pleasure of the Board, except as may otherwise be approved by the Board or
executive committee, or until the earlier resignation, removal or other
termination of employment of such officer, and shall have such authority and
shall perform such duties as may be prescribed or determined from time to time
by the Board or in case of officers other than the Chairman of the Board, if not
so prescribed or determined by the Board, as the Chief Executive Officer or the
then-senior executive officer may prescribe or determine.
The Board of Directors may require any officer or other employee or agent
to give bond for the faithful performance of his duties in such form and with
such sureties as the Board may require.
2. Duties. Subject to such extension, limitations, and other provisions as
the Board of Directors or the By-Laws may from time to time prescribe or
determine, the following officers shall have the following powers and duties:
(a) Chairman of the Board. The Chairman of the Board, when present,
shall preside at all meetings of the stockholders and of the Board of
Directors and shall be charged with general supervision of the management
and policy of the Corporation, and shall have such other powers and perform
such other duties as the Board of Directors may prescribe from time to
time.
(b) Chief Executive Officer. Subject to the Board of Directors and
the provisions of these By-Laws, the Chief Executive Officer shall be the
chief executive officer of the Corporation, shall exercise the powers and
authority and perform all of the duties commonly incident to his office,
shall in the absence of the Chairman of the Board preside at all meetings
of the stockholders and of the Board of Directors if he is a director, and
shall perform such other duties as the Board of Directors or
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executive committee shall specify from time to time. The Chief Executive
Officer or the President or a vice president, unless some other person is
thereunto specifically authorized by the Board of Directors or executive
committee, shall sign all bonds, debentures, promissory notes, deeds and
contracts of the Corporation.
(c) President. The President shall perform such duties as may be
assigned to them from time to time by the Board of Directors or by the
Chief Executive Officer if the Board does not do so. In the absence or
disability of the Chief Executive Officer, the President may, unless
otherwise determined by the Board, exercise the powers and perform the
duties pertaining to the office of Chief Executive Officer.
(d) Vice President. The Vice President or vice presidents shall
perform such duties as may be assigned to them from time to time by the
Board of Directors or by the Chief Executive Officer if the Board does not
do so or by the President if the Board and the Chief Executive Officer do
not do so. In the absence or disability of the Chief Executive Officer and
the President, the vice presidents in order of seniority may, unless
otherwise determined by the Board, exercise the powers and perform the
duties pertaining to the offices of Chief Executive Officer and President,
except that if one or more executive vice presidents has been elected or
appointed, the person holding such office in order of seniority shall
exercise the powers and perform the duties of the offices of Chief
Executive Officer and President.
(e) Secretary. The Secretary or in his absence an assistant secretary
shall keep the minutes of all meetings of stockholders and of the Board of
Directors, give and serve all notices, attend to such correspondence as may
be assigned to him, keep in safe custody the seal of the Corporation, and
affix such seal to all such instruments properly executed as may require
it, and shall have such other duties and powers as may be prescribed or
determined from time to time by the Board of Directors or by the Chief
Executive Officer if the Board does not do so or by the President if the
Board and the Chief Executive Officer do not do so.
(f) Treasurer. The Treasurer, subject to the order of the Board of
Directors, shall have the care and custody of the moneys, funds, valuable
papers and documents of the Corporation (other than his own bond, if any,
which shall be in the custody of the President), and shall have, under the
supervision of the Board of Directors, all the powers and duties commonly
incident to his office. He shall deposit all funds of the Corporation in
such bank or banks, trust company or trust companies, or with such firm or
firms doing a banking business as may be designated by the Board of
Directors or by the Chief Executive Officer if the Board does not do so or
by the President if the Board and the Chief Executive Officer do not do so.
He may endorse for deposit or collection all checks, notes, etc., payable
to the Corporation or to its order. He shall keep accurate books of account
of the Corporation's transactions, which shall be the property of the
Corporation, and together with all its property in his possession, shall be
subject at all times to the inspection and control of the Board of
Directors. The Treasurer shall be subject in every way to the order of the
Board of Directors, and shall render to the Board of Directors and/or the
Chief Executive Officer of the Corporation and/or the President of the
Corporation, whenever they may require it, an account of all his
transactions and of the financial condition of the Corporation. In addition
to the foregoing, the Treasurer shall have such duties as may be prescribed
or determined from time to time by the Board of Directors or by the Chief
Executive Officer if the Board does not do so or by the President if the
Board and the Chief Executive Officer do not do so.
3. Delegation of authority. The Board of Directors or the executive
committee may at any time delegate the powers and duties of any officer for the
time being to any other officer, director or employee.
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4. Compensation. The compensation of the of the Board, the Chief Executive
Officer, the President, all vice presidents, the Secretary and the Treasurer
shall be fixed by the Board of Directors or the executive committee, and the
fact that any officer is a director shall not preclude him from receiving
compensation or from voting upon the resolution providing the same.
ARTICLE IV:
Resignations, Vacancies and Removals
1. Resignations. Any director or officer may resign at any time by giving
written notice thereof to the Board of Directors, the Chief Executive Officer,
the President or the Secretary. Any such resignation shall take effect at the
time specified therein or, if the time be not specified, upon receipt thereof;
and unless otherwise specified therein, the acceptance of any resignation shall
not be necessary to make it effective.
2. Vacancies.
(a) Directors. When the office of any directors, becomes vacant or
unfilled whether by reason of death, resignation, removal, increase in the
authorized number of directors or otherwise, such vacancy or vacancies may
be filled by the remaining director or directors, although less than a
quorum. In the event that Pioneer and Hollinger shall have the contractual
right to require the Corporation to appoint additional directors pursuant
to Section 1(b) of these By-laws, such additional director positions shall
be deemed to be vacancies under this Section 2(a) and shall be filled in
accordance herewith. Any director so elected by the Board shall serve until
the election and qualification of his successor or until his earlier
resignation or removal as provided in these By-Laws. The directors may also
reduce their authorized number by the number of vacancies in the Board,
provided such reduction does not reduce the Board to less than the minimum
authorized by the Certificate of Incorporation or the laws of Delaware.
(b) Officers. The Board of Directors may at any time or from time to
time fill any vacancy among the officers of the Corporation.
3. Removals.
(a) Directors. Except as may otherwise be prohibited or restricted
under the laws of Delaware, the stockholders may, at any meeting called for
the purpose or by written consent of the stockholders in lieu of a meeting,
remove any director from office, with or without cause, and may elect his
successor. Except as may otherwise be prohibited or restricted under the
laws of Delaware, the Board of Directors at any meeting called for the
purpose, by vote of a majority of the then total authorized number of
directors may remove from office for cause any director and may elect such
director's successor, and by similar action may remove from office without
cause any director elected by the Board, and may elect such director's
successor.
(b) Officers. Subject to the provisions of any validly existing
agreement, the Board of Directors may at any meeting, remove from office
any officer, with or without cause, and may elect or appoint a successor;
provided that if action is to be taken to remove the Chief Executive
Officer or the President the notice of meeting or waiver of notice thereof
shall state that one of the purposes thereof is to consider and take action
on his removal.
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ARTICLE V:
Capital Stock
1. Certificate of stock. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the Corporation
in such form as may be prescribed or authorized by the Board of Directors, duly
numbered and setting forth the number and kind of shares represented thereby.
Such certificates shall be signed by the Chairman of the Board, the Chief
Executive Officer, the President or a vice president and by the Treasurer or an
assistant Treasurer or by the Secretary or an assistant secretary. Any or all of
such signatures may be in facsimile if and to the extent authorized under the
laws of Delaware.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on a certificate has ceased to be such
officer, transfer agent or registrar before the certificate has been issued,
such certificate may nevertheless be issued and delivered by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
2. Transfer of stock. Shares of the capital stock of the Corporation shall
be transferable only upon the books of the Corporation upon the surrender of the
certificate or certificates properly assigned and endorsed for transfer. If the
Corporation has a transfer agent or agents or transfer clerk and registrar of
transfers acting on its behalf, the signature of any officer or representative
thereof may be in facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars of transfer and
may make or authorize the transfer agents to make all such rules and regulations
deemed expedient concerning the issue, transfer and registration of shares of
stock.
3. Record dates.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix in
advance a record date which, in the case of a meeting, shall be not less
than the minimum nor more than the maximum number of days prior to the
scheduled date of such meeting permitted under the laws of Delaware and
which, in the case of any other action, shall be not more than the maximum
number of days prior to any such action permitted by the laws of Delaware.
(b) If no such record date is fixed by the Board, the record date
shall be that prescribed by the laws of Delaware.
(c) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of
such meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
4. Lost certificates. In case of loss or mutilation or destruction of a
stock certificate, a duplicate certificate may be issued upon such terms as may
be determined or authorized by the Board of
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Directors or executive committee or by the Chief Executive Officer if the Board
or the executive committee does not do so.
ARTICLE VI:
Fiscal Year, Bank Deposits, Checks, etc.
1. Fiscal Year. The fiscal year of the Corporation shall commence or end at
such time as the Board of Directors may designate.
2. Bank deposits, checks, etc. The funds of the Corporation shall be
deposited in the name of the Corporation or of any division thereof in such
banks or trust companies in the United States or elsewhere as may be designated
from time to time by the Board of Directors or executive committee, or by such
officer or officers as the Board or executive committee may authorize to make
such designations.
All checks, drafts or other orders for the withdrawal of funds from any
bank account shall be signed by such person or persons as may be designated from
time to time by the Board of Directors or executive committee or as may be
designated by an officer or officers authorized by the Board of Directors or
executive committee to make such designations. The signatures on checks, drafts
or other orders for the withdrawal of funds may be in facsimile if authorized in
the designation.
ARTICLE VII:
Books and Records
1. Place of keeping books. Unless otherwise expressly required by the laws
of Delaware, the books and records of the Corporation may be kept outside of
Delaware.
2. Examination of books. Except as may otherwise be provided by the laws of
Delaware, the Certificate of Incorporation or these By-Laws, the Board of
Directors shall have power to determine from time to time whether and to what
extent and at what times and places and under what conditions any of the
accounts, records and books of the Corporation are to be open to the inspection
of any stockholder. No stockholder shall have any right to inspect any account
or book or document of the Corporation except as prescribed by statute or
authorized by express resolution of the stockholders or of the Board of
Directors.
ARTICLE VIII:
Notices
1. Requirements of notice. Whenever notice is required to be given by
statute, the Certificate of Incorporation or these By-Laws, it shall not mean
personal notice unless so specified, but such notice may be given in writing by
depositing the same in a post office, letter box, or mail chute, postpaid and
addressed to the person to whom such notice is directed at the address of such
person on the records of the Corporation, and such notice shall be deemed given
at the time when the same shall be thus deposited.
2. Waivers. Any stockholder, director or officer may, in writing or by
telegram or cable, at any time waive any notice or other formality required by
statute, the Certificate of Incorporation
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or these By-Laws. Such waiver of notice, whether given before or after any
meeting or action, shall be deemed equivalent to notice. Presence of a
stockholder either in person or by proxy at any stockholders' meeting and
presence of any director at any meeting of the Board of Directors shall
constitute a waiver of any notice as may be required by any statute, the
Certificate of Incorporation or these By-Laws, except when such stockholder or
director, as the case may be, is present for the purpose of objecting, at the
beginning of the meeting, to the transaction of business thereat on the grounds
that the meeting was not lawfully called or convened.
ARTICLE IX:
Seal
The corporate seal of the Corporation shall consist of two concentric
circles between which shall be the name of the Corporation and in the center of
which shall be inscribed "Corporate Seal, Delaware."
ARTICLE X:
Powers of Attorney
The Board of Directors or the executive committee may authorize one or more
of the officers of the Corporation to execute powers of attorney delegating to
named representatives or agents power to represent or act on behalf of the
Corporation, with or without power of substitution.
In the absence of any action by the Board or the executive committee, the
President, any vice president, the Secretary or the Treasurer of the Corporation
may execute for and on behalf of the Corporation waivers of notice of
stockholders' meetings and proxies for such meetings in any company in which the
Corporation may hold voting securities.
ARTICLE XI:
Indemnification of Directors and Officers
1. Definitions. As used in this article, the term "person" means any past,
present or future director or officer of the Corporation or a designated officer
of an operating division of the Corporation.
2. Indemnification granted. The Corporation shall indemnify, to the full
extent and under the circumstances permitted by the General Corporation Law of
the State of Delaware in effect from time to time, any person made or threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that such person is or was a director or officer of the Corporation
or a designated officer of an operating division of the Corporation, or is or
was an employee or agent of the Corporation serving as a director, officer,
employee or agent of another company or other enterprise in which the
Corporation owns, directly or indirectly, an equity interest or of which it is a
creditor.
This right of indemnification shall not be deemed exclusive of any other
rights to which a person indemnified herein may be entitled by law, agreement,
vote of stockholders or disinterested directors or otherwise, and shall continue
as to a person who has ceased to be a director, officer, designated officer,
employee or agent and shall inure to the benefit of the heirs, executors,
administrators and other legal
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representatives of such person. It is not intended that the provisions of this
article be applicable to, and they are not to be construed as granting indemnity
with respect to, matters as to which indemnification would be in contravention
of the laws of Delaware or of the United States of America whether as a matter
of public policy or pursuant to statutory provision.
3. Miscellaneous. The Board of Directors may also on behalf of the
Corporation grant indemnification to any individual other than a person defined
herein to such extent and in such manner as the Board in its sole discretion may
from time to time and at any time determine.
ARTICLE XII:
Amendments
These By-Laws may be amended or repealed either:
(a) at any meeting of stockholders at which a quorum is present, by
vote of a majority of the number of shares of stock entitled to vote which
is present in person or by proxy at such meeting as provided in Article I
Sections 5 and 6 of these By-Laws, or
(b) at any meeting of the Board of Directors by a majority vote of
the directors then in office;
provided the notice of such meeting of stockholders or directors or waiver of
notice thereof contains a statement of the substance of the proposed amendment
or repeal.
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