Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Wci Communities, Inc. Etal 272 1.46M
2: EX-1.1 Purchase Agreement 50 199K
3: EX-3.1 Certificate of Inc.: Wci Communities as Amended 19 73K
12: EX-3.10 C.O.I.: Wi Ultracorp of Florida, Inc. 1 29K
13: EX-3.11 A.O.I.: Bay Colony of Naples, Inc. 2 32K
14: EX-3.12 A.O.I.: Bay Colony Realty Associates, Inc. 1 26K
15: EX-3.13 A.O.I.: Communities Amenities, Inc. 3 32K
16: EX-3.14 A.O.I.: Communities Home Builders, Inc. 3 32K
17: EX-3.15 A.O.I.: Coral Ridge Communities, Inc. 4 37K
18: EX-3.16 A.O.I.: Coral Ridge Properties, Inc. 7 46K
19: EX-3.17 A.O.I.: Coral Ridge Realty, Inc., as Amended 12 61K
20: EX-3.18 A.O.I.: Coral Ridge Realty Sales, Inc. 9 50K
21: EX-3.19 A.O.I.: Financial Resources Group, Inc. 3 31K
4: EX-3.2 Restated C.O.I.: Bay Colony-Gateway, Inc. 17 77K
22: EX-3.20 A.O.I.: Florida Design Communities, Inc. as Amend 7 44K
23: EX-3.21 A.O.I.: Florida Lifestyle Management Co., as Amndd 10 45K
24: EX-3.22 A.O.I.: Florida National Properties, Inc. 4 36K
25: EX-3.23 A.O.I.: Gateway Communities, Inc. 2 32K
26: EX-3.24 A.O.I.: Gateway Communications Services, Inc. 2 31K
27: EX-3.25 A.O.I.: Gateway Realty Sales, Inc. 3 31K
28: EX-3.26 A.O.I.: Heron Bay, Inc. 4 36K
29: EX-3.27 A.O.I.: Heron Bay Golf Course Properties, Inc. 4 36K
30: EX-3.28 A.O.I.: Jyc Holdings, Inc. 3 33K
31: EX-3.29 A.O.I.: Livingston Naples, Inc., as Amended 4 35K
5: EX-3.3 Certificate of Formation of Communities Finance 4 31K
32: EX-3.30 A.O.I.: Livingston Road, Inc. 3 34K
33: EX-3.31 A.O.I.: Marbella at Pelican Bay, Inc. 3 33K
34: EX-3.32 A.O.I.: Pelican Bay Properties, Inc. 3 34K
35: EX-3.33 A.O.I.: Pelican Landing Communities, Inc. 1 29K
36: EX-3.34 A.O.I.: Pelican Landing Properties, as Amended 9 44K
37: EX-3.35 A.O.I.: Pelican Marsh Properties, Inc. 2 30K
38: EX-3.36 A.O.I.: Sarasota Tower, Inc. 3 33K
39: EX-3.37 A.O.I.: Sun City Center Realty, Inc., as Amended 8 41K
40: EX-3.38 A.O.I.: the Colony at Pelican Landing Golf Club 2 33K
41: EX-3.39 A.O.I.: Tarpon Cove Yacht & Racquet Club, Inc. 5 40K
6: EX-3.4 C.O.I.: First Fidelity Title, Inc. 12 62K
42: EX-3.40 A.O.I.: Tarpon Cove Realty, Inc. 2 30K
43: EX-3.41 A.O.I.: Watermark Pools, Inc. 3 33K
44: EX-3.42 A.O.I.: Watermark Realty Referral, Inc., as Amndd 5 38K
45: EX-3.43 A.O.I.: Wci Communities Property Management, Inc. 3 33K
46: EX-3.44 A.O.I.: Wci Golf Group, Inc. 3 34K
47: EX-3.45 A.O.I.: Wci Homes, Inc. 3 33K
48: EX-3.46 A.O.I.: Wci Realty, Inc. 2 30K
49: EX-3.47 A/R By-Laws: Wci Communities, Inc. 14 74K
50: EX-3.48 A/R By-Laws: Bay Colony-Gateway, Inc. 29 82K
51: EX-3.49 Limited Liability Co Agreement: Comm Fin Co, LLC 10 60K
7: EX-3.5 Certificate of Formation of Panther Developments 3 31K
52: EX-3.50 By-Laws of First Fidelity Title, Inc. 28 75K
53: EX-3.51 Limited Liability Co Agreement: Panther Develop 9 61K
54: EX-3.52 By-Laws of Pelican Landing Golf Resort Ventures 13 72K
55: EX-3.53 By-Laws of Sun City Center Golf Properties, Inc. 16 74K
56: EX-3.54 By-Laws of Tiburon Golf Ventures, Inc. 12 63K
57: EX-3.55 By-Laws of Watermark Realty, Inc. 16 74K
58: EX-3.56 By-Laws of Wi Ultracorp of Florida, Inc. 10 59K
59: EX-3.57 By-Laws of Bay Colony of Naples, Inc. 14 74K
60: EX-3.58 By-Laws of Bay Colony Realty Associates, Inc. 10 52K
61: EX-3.59 By-Laws of Communities Amenities, Inc. 7 51K
8: EX-3.6 C.O.I.: Pelican Landing Golf Resort Ventures, Inc. 4 40K
62: EX-3.60 By-Laws of Communities Home Builders, Inc. 7 51K
63: EX-3.61 By-Laws of Coral Ridge Communities, Inc. 7 50K
64: EX-3.62 By-Laws of Coral Ridge Properties, Inc. 18 50K
65: EX-3.63 By-Laws of Coral Ridge Realty, Inc. 11 54K
66: EX-3.64 By-Laws of Coral Ridge Realty Sales, Inc. 10 55K
67: EX-3.65 By-Laws of Financial Resources Group, Inc. 14 74K
68: EX-3.66 By-Laws of Florida Design Communities, Inc. 16 71K
69: EX-3.67 A/R By-Laws of Florida Lifestyle Management Co 25 64K
70: EX-3.68 By-Laws of Florida National Properties, Inc. 7 50K
71: EX-3.69 By-Laws of Gateway Communities, Inc. 27 72K
9: EX-3.7 C.O.I.: Sun City Center Golf Properties, Inc. 7 47K
72: EX-3.70 By-Laws of Gateway Communications Services, Inc. 16 69K
73: EX-3.71 By-Laws of Gateway Realty Sales, Inc. 13 71K
74: EX-3.72 By-Laws of Heron Bay, Inc. 7 50K
75: EX-3.73 By-Laws of Heron Bay Golf Course Properties, Inc. 16 74K
76: EX-3.74 By-Laws of Jyc Holdings, Inc. 7 50K
77: EX-3.75 By-Laws of Livingston Naples, Inc. 7 51K
78: EX-3.76 By-Laws of Livingston Road, Inc. 7 50K
79: EX-3.77 By-Laws of Marbella at Pelican Bay, Inc. 7 53K
80: EX-3.78 By-Laws of Pelican Bay Properties, Inc. 11 44K
81: EX-3.79 By-Laws of Pelican Landing Communities, Inc. 7 50K
10: EX-3.8 C.O.I.: Tiburon Golf Ventures, Inc. 4 40K
82: EX-3.80 By-Laws of Pelican Landing Properties, Inc. 16 71K
83: EX-3.81 By-Laws of Pelican Marsh Properties, Inc. 10 52K
84: EX-3.82 By-Laws of Sarasota Tower, Inc. 7 51K
85: EX-3.83 A/R By-Laws of Sun City Center Realty, Inc. 26 65K
86: EX-3.84 By-Laws of the Colony at Pelican Landing Golf Club 21 77K
87: EX-3.85 By-Laws of Tarpon Cove Yacht & Racquet Club, Inc. 27 77K
88: EX-3.86 By-Laws of Tarpon Cove Realty, Inc. 10 52K
89: EX-3.87 By-Laws of Watermark Pools, Inc. 7 50K
90: EX-3.88 By-Laws of Watermark Realty Referral, Inc. 16 74K
91: EX-3.89 By-Laws of Wci Communities Property Management 7 50K
11: EX-3.9 C.O.I.: Watermark Realty, Inc., as Amended 8 40K
92: EX-3.90 By-Laws of Wci Golf Group, Inc. 7 51K
93: EX-3.91 By-Laws of Wci Homes, Inc. 7 51K
94: EX-3.92 By-Laws of Wci Realty, Inc. 11 55K
95: EX-4.1 Indenture 152 669K
96: EX-4.3 Registration Rights Agreement 32 132K
97: EX-5.1 Opinion of Simpson Thacher & Bartlett 6 39K
98: EX-9.1 Investors' Agreement, Dated as of November 30, 98 27 108K
99: EX-9.2 First Amendment to Investors' Agreement 8 49K
100: EX-10.1 Primary Tax Allocation Agreement 12 60K
101: EX-10.2 3rd Con A/R Senior Secured Facilities Credit Agrmt 137 497K
102: EX-10.3 Employment Agreement: Don E. Ackerman 10 54K
103: EX-10.4 Employment Agreement: Alfred Hoffman, Jr. 11 61K
104: EX-12.1 Statement Re Computation of Ratios 1 29K
105: EX-21.1 Subsidiaries 2 30K
106: EX-23.2 Consent of Pricewaterhousecoopers LLP 1 27K
107: EX-23.3 Consent of Kpmg LLP 1 27K
108: EX-25.1 Form T-1 13 60K
109: EX-99.1 Form of Letter of Transmittal 14 95K
110: EX-99.2 Notice of Guaranteed Delivery 3 36K
EX-3.47 — A/R By-Laws: Wci Communities, Inc.
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EXHIBIT 3.47
AMENDED AND RESTATED BY-LAWS
OF
WCI COMMUNITIES, INC.
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office shall be in the City
of Dover, County of Kent, State of Delaware.
SECTION 2. Other 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 the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Location of Meetings. The meetings of the stockholders for
the election of directors may be held at such place as may be fixed from time to
time by the board of directors, or at such other 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. Meetings of stockholders for
any other purpose may be held at such time and place, 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 thereof.
SECTION 2. Annual Meeting. The Annual meetings of the stockholders shall
be held on the date as determined by the directors of the corporation and if a
legal holiday, then on the next secular day following, at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
SECTION 3. Notice of Annual Meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
SECTION 4. Stock Ledgers. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 5. 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 the chairman and shall be called
by the chairman, president or secretary at the request, in writing, of a
majority of the board of directors, or at the request in writing of stockholders
owning shares of capital stock equal to 50% of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
SECTION 6. Notice of Special Meetings. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
SECTION 7. Business Transacted at Special Meetings. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
SECTION 8. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, any officer entitled to preside
at or to act as secretary of the meeting shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 9. Voting. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of the statutes or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
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SECTION 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing may
authorize another person to act for him as his proxy, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a longer
period.
SECTION 11. Actions Without a Meeting. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. Members; Number; Term. The number of directors, which shall
constitute the whole board, shall be not less than one (1) nor more than nine
(9). Within the limits above specified, the number of directors shall be
determined by resolution of the board of directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
SECTION 2. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a vote of a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
SECTION 3. Powers. The business of the corporation shall be managed by
or under the direction of its board of directors which may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
SECTION 4. Location of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
-3-
SECTION 5. Annual Meetings. The first meeting of each newly elected
board of directors shall be held at such time and place as shall be fixed by the
vote of the stockholders at the annual meeting and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
SECTION 6. Regular Meetings. Regular meetings of the board of directors
may be held without notice at such time and at such place as shall from time to
time be determined by the board.
SECTION 7. Special Meetings. Special meetings of the board may be called
by the chairman on two (2) days' notice to each director, either personally or
by mail or by telegram; special meetings shall be called by the chairman or the
secretary in like manner and on like notice on the written request of two
directors.
SECTION 8. Quorum. At all meetings of the board, a majority of the
members of the board shall constitute a quorum for the transaction of business
and the act of a majority of the 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 specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of
directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 9. Actions Without a Meeting. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if 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.
SECTION 10. Participation by Telephone. Unless otherwise restricted by
the certificate of incorporation or these by-laws, members of the board of
directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
SECTION 11. Committees.
(a) The board of directors may, by resolution passed by a majority of
the whole board, designate one or more committees, each committee to consist of
one or more of
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the directors of the corporation. A majority of the director members shall
constitute a quorum at any meeting of said committee or committees. The board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
(b) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he, she 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.
(c) 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 the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution 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 names as may be determined from time to time by resolution adopted by
the board of directors.
(d) Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
SECTION 12. Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation or these by-laws, the board of directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the board .of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
SECTION 13. Removal of Directors. Unless otherwise restricted by the
certificate of incorporation or by law, any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority of
shares entitled to vote at an election of directors.
-5-
ARTICLE IV
NOTICES
SECTION 1. Notices. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
SECTION 2. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the certificate of incorporation or
of these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a person at any meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
OFFICERS
SECTION 1. Number. The officers of the corporation shall be a chief
executive officer, a president, a chief financial officer, a treasurer, a
secretary, and such vice presidents, assistant treasurers, assistant secretaries
or other officers as may be elected by the board of directors. Any two or more
offices may be held by the same person.
SECTION 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the board of directors. Each
officer shall hold office until his or her successor shall have been duly
elected and shall have qualified or until his or her death or until he or she
shall resign or shall have been removed in the manner hereinafter provided.
Election of an officer shall not of itself create contract rights.
SECTION 3. Removal. Any officer elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
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SECTION 4. Chief Executive Officer. The chief executive officer of the
corporation, shall preside at all meetings of the stockholders and board of
directors, and subject to the direction of the board of directors, shall in
general supervise and control all of the business and affairs of the corporation
and see that all orders and resolutions of the board of directors are carried
into effect. He may sign certificates for shares of the corporation, any deeds,
mortgages, bonds, contracts, tax returns, tax elections or other instruments
which the board of directors have authorized to be executed, or which are in the
ordinary course of business of the corporation. He may vote, either in person or
by proxy, all of the shares of the capital stock of any company which the
corporation owns or is otherwise entitled to vote at any and all meetings of the
stockholders of such company and shall have the power to accept or waive notice
of such meetings. In the absence or disability of the president, the chief
executive officer shall perform the duties and exercise the powers of the
president.
SECTION 5. President. The president, subject to the direction of the
chief executive officer and the board of directors, shall exercise supervision
and control over the daily operations of the corporation and shall perform such
other duties and have such other powers as the chief executive officer or the
board of directors may from time to time determine. He may sign certificates for
shares of the corporation, any deeds, mortgages, bonds, contracts or other
instruments which the board of directors have authorized to be executed, or
which are in the ordinary course of business of the corporation. Subject to the
direction of the chief executive officer and the board of directors, he may
vote, either in person or by proxy, all of the shares of the capital stock of
any company which the corporation owns or is otherwise entitled to vote at any
and all meetings of the stockholders of such company and shall have the power to
accept or waive notice of such meetings. In the absence or disability of the
chief executive officer, the president shall perform the duties and exercise the
powers of the chief executive officer.
SECTION 6. Vice-President(s). The vice-president(s), if any, shall
assist the president in the discharge of his or her duties as the president may
direct and shall perform such other duties as from time to time may be assigned
to him by the president or by the board of directors. In the absence of the
president or in the event of his inability or refusal to act, the vice-president
(or in the event there be more than one vice-president, the vice-presidents in
the order designated by the board of directors, or by the president if the board
of directors has not made such a designation, or in the absence of any
designation, then in the order of seniority of tenure as vice-president) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. Except in
those instances in which the authority to execute is expressly delegated to
another officer or agent of the corporation or a different mode of execution is
expressly prescribed by the board of directors or these by-laws, the
vice-president (or each of them if there are more than one) may execute for the
corporation certificates for its shares and any contracts, deeds, mortgages,
bonds or other instruments which the board of directors has authorized to be
executed, and he or she may accomplish such execution either under or without
the seal of the corporation and either individually or with the secretary, any
assistant secretary, or any other officer there unto authorized by the board of
directors, according to the requirements of the form of the instrument.
-7-
SECTION 7. Chief Financial Officer. The chief financial officer shall be
the principal accounting and financial officer of the corporation. He or she
shall: (a) have charge of and be responsible for the maintenance of adequate
books of account for the corporation; (b) have charge and custody of all funds
and securities of the corporation, and be responsible therefor and for the
receipt and disbursement thereof; and (c) perform all the duties incident to the
office of chief financial officer and such other duties as from time to time may
be assigned to him or her by the president or by the board of directors. If
required by the board of directors, the chief financial officer shall give a
bond for the faithful discharge of his or her duties in such sum and with such
surety or sureties as the board of directors may determine.
SECTION 8. Treasurer. Under the direction of the chief financial
officer, the, the treasurer shall: (a) have charge and custody of all funds and
securities of the corporation, and be responsible therefor and for the receipt
and disbursement thereof; and (b) perform all the duties incident to the office
of treasurer and such other duties as from time to time may be assigned to him
or her by the chief financial officer or the board of directors. If required by
the board of directors; the treasurer shall give a bond for the faithful
discharge of his or her duties in such sum and with such surety or sureties as
the board of directors may determine.
SECTION 9. Secretary. The secretary shall: (a) record the minutes of
the shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation; (d) keep a register of
the post-office address of each shareholder which shall be furnished to the
secretary by such shareholder; (e) sign with the president, or a vice-president,
or any other officer thereunto authorized by the board of directors,
certificates for shares of the corporation, the issue of which shall have been
authorized by the board of directors, and any contracts, deeds, mortgages,
bonds, or other instruments which the board of directors has authorized to be
executed, according to the requirements of the form of the instrument, except
when a different mode of execution is expressly prescribed by the board of
directors or these by-laws; (f) have general charge of the stock transfer books
of the corporation; (g) have authority to certify the by-laws, resolutions of
the shareholders and board of directors and committees thereof, and other
documents of the corporation as true and correct copies thereof, and (h) perform
all duties incident to the office of secretary and such other duties as from
time to time may be assigned to him or her by the president or by the board of
directors.
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SECTION 10. Assistant Treasurers and Assistant Secretaries. The
assistant treasurers and assistant secretaries shall perform such duties as
shall be assigned to them by the treasurer or the secretary, respectively, or by
the president or the board of directors. The assistant secretaries may sign with
the president, or a vice-president, or any other officer thereunto authorized by
the board of directors, certificates for shares of the corporation, the issue of
which shall have been authorized by the board of directors, and any contracts,
deeds, mortgages, bonds, or other instruments which the board of directors has
authorized to be executed, according to the requirements of the form of the
instrument, except when a different mode of execution is expressly prescribed by
the board of directors or these by-laws. The assistant treasurers shall
respectively, if required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the board of
directors shall determine.
SECTION 11. Salaries. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. Form of Certificates. 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 chief executive officer, president or a vice-president
and the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, certifying the number of shares owned by him or
her in the corporation
Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
SECTION 2. Classes of Securities. If the corporation shall be authorized
to issue more than one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualification,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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SECTION 3. Signatures. Any of or all the signatures on the certificate
may be 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 or she were such officer, transfer agent or registrar at the date of
issue.
SECTION 4. Lost, Stolen or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates 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 or certificates, 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 certificates, or his or her legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
SECTION 5. Transfer of Stock. Upon surrender to the corporation or the
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 to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 6. Transfer Agent. The board of directors may appoint one or
more transfer agents or transfer clerks and one or more registrars, and may
require all certificates for shares to bear the signature or signatures of any
of them. If a transfer agent or transfer agents are appointed, one transfer
agent shall be designated to maintain a stock ledger listing the names and
addresses and the holders of all issued stock of the corporation.
SECTION 7. Stock Ledger. An officer of the corporation, or a designated
transfer agent, shall maintain a stock ledger listing the names and addresses of
the holders of all issued stock of the corporation, the number of shares held by
each, the certificate numbers representing such stock and the date of issue of
the certificates. If appointed, the registrar, or otherwise an officer of the
corporation shall maintain a stock register listing the total number of shares
of each class which the corporation is authorized to issue, and the total number
of shares actually issued. The stock ledger and stock register shall constitute
the stock transfer books of the corporation, but as between the two, the stock
ledger maintained by the transfer agent or officer of the corporation shall be
considered the official list of stockholders of record of the corporation. The
name and address of each stockholder of record as it shall appear on the stock
ledger shall be conclusive evidence as to who are the stockholders entitled to
receive notice of meetings and to vote at such meetings and to receive dividends
and the other distributions made by the corporation. Stockholders are
responsible for notifying the transfer agent, or corporation if no transfer
agent is appointed, in writing, of any change of name or
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address, and failure to do so will relieve the corporation, its officers,
directors and agents, and its transfer agent and registrar, of liability for
failure to send notices or pay dividends or other distributions to a name or
address other than the name or address appearing on the stock ledger maintained
by the transfer agent, or an officer of the corporation.
SECTION 8. Fixing Record Date. 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 shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
SECTION 9. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable 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 the laws of Delaware.
ARTICLE VII
INDEMNIFICATION
SECTION 1. General. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation or is or was serving at the request of the corporation as a
director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer, shall be indemnified and held harmless by the corporation
to the fullest extent authorized by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the corporation
to provide broader indemnification rights than said law permitted the
corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such person in connection
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therewith and such indemnification shall continue as to a person who has ceased
to be a director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
Section 2 of this Article VII with respect to proceedings seeking to enforce
rights to indemnification, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Article VII shall be a contract right and
shall include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the General Corporation Law of the State of Delaware requires,
an advance payment of expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the corporation of an undertaking by or on behalf of
such director or officer, to repay all amounts so advanced if it shall be
finally adjudicated that such director or officer is not to be indemnified under
this Article VII or otherwise.
SECTION 2. Expenses. If a claim under Section 1 of this Article VII is
not paid in full by the corporation within thirty 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 be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
corporation (including, its board of directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the corporation (including its board of directors, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 3. Non-Exclusive. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article VII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. Insurance. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability
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or loss, whether or not the corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of the State of Delaware.
SECTION 5. Employees and Agents. The corporation may, to the extent
authorized from time to time by the board of directors, grant rights to
indemnification, and to the advancement of expenses incurred in defending any
proceeding to any employee or agent of the corporation to the fullest extent of
the provisions of this Article VII with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
SECTION 6. Corporation Defined. For purposes of this Article VII, the
term "corporation" shall include, in addition to the corporation, any
constituent corporation absorbed in a consolidation or merger with the
corporation, to the extent such constituent corporation would have had power and
authority to indemnify its directors, officers, employees and agents if its
separate existence had survived.
ARTICLE VIII
SECTION 1. Dividends.
(a) Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
(b) Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 2. Annual Statement. The board of directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
SECTION 3. Signatures. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
SECTION 4. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
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SECTION 5. Seal. The corporation may adopt a corporate seal, which shall
have inscribed thereon the name of the corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 6. Amendments. These by-laws may be altered or repealed at any
regular or special meeting of the stockholders or of the board of directors.
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