EX-3.5 10 v67130ex3-5.txt EXHIBIT 3.5 1 BY-LAWS OF AQUA VIE BEVERAGE CORPORATION Art. I. Offices 1.01 Registered Office 1.02 Principal Office 1.03 Other Offices Art. II. Shareholders 2.01 Time and Place of Meetings 2.02 Annual Meeting - Election of Directors 2.03 Special Meetings 2.04 Notices 2.05 Voting List 2.06 Quorum 2.07 Majority Vote; Withdrawal of Quorum 2.08 Voting 2.09 Record Date; Closing Transfer Books 2.10 Action without Meeting Art. III. Directors 3.01 Management 3.02 Number; Qualification; Election; Term 3.03 Change in Number 3.04 Removal 3.05 Vacancies 3.06 Compensation 3.07 Meetings of the Board of Directors (a) Place (b) First Meetings (c) Regular Meetings (d) Special Meetings (e) Quorum; Majority Vote (f) Procedure 3.08 Action without Meeting 3.09 Telephone and Communications Equipment Meetings Art. IV. Notices 4.01 Method 4.02 Waiver -i- 2 Art. V. Committees of the Board of Directors 5.01 Designation 5.02 Number; Qualification; Term 5.03 Authority of Committees 5.04 Change in Number 5.05 Removal 5.06 Vacancies 5.07 Meetings 5.08 Quorum; Majority Vote 5.09 Compensation 5.10 Procedure 5.11 Action without Meeting 5.12 Responsibility 5.13 Telephone and Communications Equipment Meetings Art. VI. Officers & Agents 6.01 Number; Qualification; Election; Term 6.02 Removal 6.03 Vacancies 6.04 Authority 6.05 Compensation 6.06 Chairman of the Board 6.07 President 6.08 Executive Vice President 6.09 Vice Presidents 6.10 Secretary 6.11 Assistant Secretaries 6.12 Treasurer 6.13 Bonding of Officers Art. VII. Certificates and Shareholders 7.01 Certificates 7.02 Issuance 7.03 Payment for Shares 7.04 Subscriptions 7.05 Lien 7.06 Lost, Stolen or Destroyed Certificates 7.07 Registration or Transfer 7.08 Registered Owner 7.09 Preemptive Rights Art. VIII. Indemnification; Insurance 8.01 Persons 8.02 Extent -- Derivative Suits 8.03 Standard -- Derivative Suits -ii- 3 8.04 Extent -- Nonderivative Suits 8.05 Standard -- Nonderivative Suits 8.06 Determination That Standard Has Been Met 8.07 Proration 8.08 Advance Payment 8.09 Nonexclusive 8.10 Continuation 8.11 Insurance 8.12 Reports Art. IX. General Provisions 9.01 Dividends and Reserves 9.02 Books and Records 9.03 Annual Statement 9.04 Checks and Notes 9.05 Fiscal Year 9.06 Seal 9.07 Resignation 9.08 Amendment of By-laws 9.09 Construction 9.10 Table of Contents; Headings -iii- 4 AQUA VIE BEVERAGE CORPORATION (A Delaware Corporation) BY-LAWS ARTICLE I OFFICES 1.01 Registered Office. The registered office of the Corporation in the State of Delaware shall be the Corporation Services Corporation located at 1013 Centre Road, City of Wilmington, County of New Castle, Delaware 19805. 1.02 Principal Office. The principal office of the Corporation shall be 333 South Main Street, Ketchum, Idaho 83340. 1.03 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 STOCKHOLDERS 2.01 Time and Place of Meetings. All meetings of the stockholders shall be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of meeting or in a duly executed waiver thereof. 2.02 Annual Meeting - Election of Directors. An annual meeting of the stockholders, commencing with the year 1999 shall be held each year at a time on the third Friday during the month of September to be selected by the board of directors. If such day is a legal holiday, the meeting shall be held on the next secular day following. At the meeting, the stockholders shall elect the directors and transact such other business as may properly be brought before the meeting. 2.03 Special Meeting. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by the Act or by the Articles of Incorporation, or by these By-Laws, may be called by the chairman of the board, if any, the president or secretary, and shall be called by the chairman of the board, the president or secretary at the request in writing of a majority of the board of directors or the holders of twenty-five percent (25%) or more of the shares entitled to vote at such meeting. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the 5 notice of the meeting. 2.04 Notices. Written or printed notice of the annual or any special meeting stating the place, day, and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered to each stockholder of record entitled to vote not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the chairman of the board, the president, the secretary or the officer or person calling the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at the address as it appears on the stock transfer books of the corporation, with postage thereon prepaid. 2.05 Voting List. The officer or agent who has charge of the stock transfer books of the corporation shall make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting or any adjournment thereof, arranged in alphabetical order, with address of and the number of voting shares held by each. Such list shall be kept on file at the principal office of the corporation for a period of ten days prior to such meeting and shall be subject to inspection by any stockholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer books shall be prima facie evidence as to who are stockholders entitled to examine such list or transfer books and to vote at any meeting of stockholders. 2.06 Quorum. The holders of a majority of the issued and outstanding stock entitled to vote thereat, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute, by the certificate of incorporation, or by these By-Laws. If a quorum is not present or represented at a meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. 2.07 Majority Vote; Withdrawal of Quorum. When a quorum is present at any meeting, the vote of the holders of a majority of the shares have 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 2 6 the statutes or of the certificate of incorporation or of these By-Laws, a different vote is required in which case such express provision shall govern and control the decision of such question. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 2.08 Voting. (a) Each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders, except to the extent that the voting rights of the shares of any class or classes are limited or denied by the articles of incorporation. At any meeting of the stockholders, every stockholder having the right to vote may vote either in person, or by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. Each proxy shall be revocable unless expressly provided therein to be irrevocable and unless otherwise made irrevocable by law. Each proxy shall be filed with the secretary of the corporation prior to or at the time of the meeting. (b) Treasury shares, shares of stock owned by another corporation the majority of the voting stock of which is owned or controlled by this corporation, and shares of stock held by this corporation in a fiduciary capacity shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding shares at any given time. (c) Directors shall be elected by plurality vote. (d) Shares standing in the name of another corporation, domestic or foreign, may be voted on by such officer, agent, or proxy as the By-Laws of such corporation may authorize or, in the absence of such authorization, as the board of directors of such corporation may determine. (e) Shares held by an administrator, guardian or conservator may be voted by him so long as such shares forming part of an estate are in the possession and forming a part of the estate being served by him, either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer to such shares into his name as trustee. (f) Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to be contained in 3 7 an appropriate order of the court by which such receiver was appointed. (g) A stockholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. (h) Voting on any question or in any election may be by voice vote or show of hands unless the presiding officer shall order, or the holders of at least ten percent of the shares entitled to vote shall demand, that voting be by written ballot. 2.09 Record Date; Closing Transfer Books. The board of directors may fix in advance a record date for the purpose of determining stockholders entitled to notice of or to vote at a meeting of the stockholders, the record date to be not less than ten nor more than fifty days prior to the meeting; for such purpose for a period of not less than ten nor more than fifty days prior to such meeting. In the absence of any action by the board of directors, the date upon which the notice of the meeting is mailed shall be the record date. 2.10 Action Without Meeting. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with and such action may be taken with the written consent of stockholders having not less than the minimum percentage of the vote required by statute for the proposed corporate action, provided that prompt notice shall be given to all stockholders of the taking of the corporate action without a meeting and by less than unanimous consent. ARTICLE III DIRECTORS 3.01 Management. The business and affairs of the corporation shall be managed by the board of directors who may exercise all such powers of the corporation and do all such lawful actions and things as are not (by statute or by the articles of incorporation or by these By-Laws) directed or required to be exercised or done by the stockholders. 3.02 Number; Qualification; Election; Term. The board of directors shall consist of not fewer than one nor more than eleven directors as shall be fixed from time to time by resolution of the board of directors. The first board after the adoption of these By-Laws shall consist of three directors. Directors need not be residents of the State of Delaware or 4 8 stockholders of the corporation. The directors shall be elected at the annual meeting of the stockholders, except as provided in By-Laws 3.03 and 3.05. Each director shall hold office until his successor shall be elected and shall qualify. 3.03 Change in Number. The number of directors may be increased or decreased from time to time by resolution of the board of directors at any meeting, but not decrease shall have the effect of shortening the term of any incumbent director. 3.04 Removal. Any director may be removed either for or without cause at any special or annual meeting of stockholders, by the affirmative vote of a majority in number of shares of the stockholders present in person or by proxy at such meeting and entitled to vote for the election of such director if notice of intention to act upon such matter shall have been given in the notice calling such meeting. 3.05 Vacancies. Any vacancy occurring in the Board of Directors (by death, resignation, removal or otherwise) may be filled by an affirmative vote of a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director. A Director elected to fill such a vacancy shall be elected for the unexpired term of his predecessor in office. Any newly created directorship resulting from any increase in the authorized number of Directors may be filled by an affirmative vote of a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director. 3.06 Compensation. By resolution of the board 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 of attendance at each meeting of the board of directors or a corporation in any other capacity and receiving compensation therefor. Member of special or standing committees may, by resolution of the board of directors, be allowed like compensation for attending committee meetings. 3.07 Meetings of the Board of Directors. (a) Place. Meetings of the board of directors of the corporation, regular or special, may be held either within or without the state of Delaware. (b) First Meeting. The first meeting of the newly elected board of directors shall be held without further notice immediately following the annual meeting of stockholders, at the same place, unless (by unanimous consent of the directors then elected and serving) such time or place shall be changed. (c) Regular Meetings. Regular meetings of the 5 9 board of directors may be held without notice at such time and at such place as shall from time to time by determined by the board by resolution. (d) Special Meetings. Special meetings of the board of directors may be called by or at the request of the chairman of the board, the president or the secretary and shall be called by the secretary on the written request of two of the incumbent directors. The person or persons authorized to call special meetings of the board of directors may fix the place for holding any special meeting of the board of directors called by them. Notice of any special meeting shall be given at least twenty-four (24) hours previous thereto if given either personally (including written notice delivered personally or notice by telephone) or by telegram, and at least seventy-two (72) hours previous thereto if given by written notice mailed to each director at the address of his business and residence. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need by specified in the notice or waiver of notice of such meeting. If mailed, the notice shall be deemed to be delivered when deposited in the United States mail addressed, in the above-specified manner, with postage thereon prepaid. If notice by given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting, as provided in By-Law 4.02. (e) Quorum; Majority Vote. At all meetings of the board of directors a majority of the number of directors fixed by these By-Laws shall constitute a quorum for the transaction of business. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, except as otherwise specifically provided by statute or by the articles of incorporation or by these By-Laws. If a quorum is not present at a 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 is present. (f) Procedure. The board of directors shall keep regular minutes of its proceedings. The minutes shall be placed in the minute book of the corporation. 3.08 Action Without Meeting. Any action required or permitted to be taken at a meeting of the board of directors may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the board of directors. Such consent shall have the same force and effect as a unanimous vote at a meeting. The signed consent, or a signed copy, shall be placed in the minute book. 6 10 3.09 Telephone and Communication Equipment Meetings. Stockholders, members of the board of directors, and members of any committee of the board of directors may participate in meetings by means of conference telephone or other communications equipment to the full extent permissible by Section 141 (i) of the General Corporation Law of the State of Delaware. ARTICLE IV NOTICES 4.01 Method. Whenever by statute or the certificate of incorporation or these By-Laws, notice is required to be given to director or stockholder, and no provision is made as to how the notice shall be given, it shall not be construed to mean personal notice, but any such notice may be given (a) in writing, by mail, postage prepaid, addressed to the director or stockholder at the address appearing on the books of the corporation, or (b) in any other method permitted by law. Any notice required or permitted to be given by mail shall be deemed given at the time when the same is this deposited in the United States mail. 4.02 Waiver. Whenever, by statute or the articles of incorporation or these By-Laws, notice is required to be given to a stockholder or director, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated in such notice, shall be equivalent to the giving of such notice. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. ARTICLE V. COMMITTEES OF THE BOARD OF DIRECTORS 5.01 Designation. The board of directors may by resolution of a majority of the whole board, designate an executive committee, and one or more other committees including an audit committee, a compensation committee, and any such other special committees as the board shall deem advisable. 5.02 Number; Qualification; Term. Each committee shall consist of, one or more directors who will serve at the pleasure of the board of directors. The executive committee shall include the president. The other committees may include any members of the board except as provided below with respect to the audit and compensation committees. (a) Audit Committee. The audit committee if any 7 11 shall consist of directors who are not officers or full-time employees of the corporation. (b) Compensation Committee. The compensation committee, if any, may include the chief accounting and financial officer of the corporation provided a majority of the committee are not officers or full-time employees of the corporation. 5.03 Authority of Committees. (a) The Executive Committee. The executive committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the board of directors in the management of the business and affairs of the corporation, certificate of incorporation, and shall have power to authorize the seal of the corporation to be affixed to all papers which may require it. Without limiting the general authority of the executive committee, it shall have the power: (1) to appoint officers and agents of the corporation and determine their salaries (subject to recommendation of the compensation committee, if any). (2) to borrow money, and issue bonds, notes or other obligations and evidences of indebtedness therefor. (3) to authorize the corporate seal to be affixed to documents of the corporation. (4) to determine questions of general policy with regard to the business of the corporation. (5) to make recommendations as to declaration of dividends. (b) Audit Committee. The audit committee, if any, shall nominate the independent public accountants to report on the financial statements of the corporation, and shall have such other powers, duties and authority as shall be set forth in the resolutions of the board of directors appointing the committee. (c) Compensation Committee. The compensation committee, if any, shall have the responsibility of reviewing the remuneration of the officers and key employees of the corporation including stock option and stock purchase rights and such other powers, duties and authority as shall be set forth in the resolutions of the board of directors appointing the committee. (d) Other Committees. Any other committee or committees appointed by the directors shall have and may exercise 8 12 such powers of the board of directors in the management of the business and affairs of the corporation as shall be provided in the resolution(s) creating the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution of the board of directors. 5.04 Chance in Number. The number of members of any committee may be increased or decreased from time to time by resolution adopted by a majority of the whole board of directors. 5.05 Removal. Any member of a committee may be removed by the board of directors by the affirmative vote of a majority of the whole board, whenever in its judgment the best interests of the corporation will be served thereby. 5.06 Vacancies. A vacancy occurring in any committee (by death, resignation, removal or otherwise) may be filled by the board of directors in the manner provided for original designation in By-Law 5.01. 5.07 Meetings. Time, place and notice (if any) of executive committee meetings shall be determined by the committee. 5.08 Quorum; Majority Vote. At meetings of each committee, a majority of the number of members designated by the board of directors shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by statute or by the articles of incorporation or by these By-Laws. If a quorum is not present at a meeting of the committee, the members present thereat may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. 5.09 Compensation. See By-Law 3.05. 5.10 Procedure. Each committee shall keep regular minutes of its proceedings and report the same to the board of directors when required. The minutes of the proceedings of each committee shall be placed in the minute book of the corporation. 5.11 Action Without Meeting. Any action required or permitted to be taken at a meeting of any committee may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the committee. Such consent shall have the same force and effect as a unanimous vote at a meeting. The signed consent, or a signed copy, shall be placed in the minute book. 5.12 Telephone and Communication Equipment Meetings. Meetings 9 13 of committees may be held by telephone as provided in By-Law 3.09. 5.13 Responsibility. The designation of a committee and the delegation of authority to it shall not operate to relieve the board of directors, or any member thereof, of any responsibility imposed upon it or him by law. ARTICLE VI. OFFICERS AND AGENTS 6.01 Number; Qualification; Election; Term. (a) The corporation shall have: (1) A president, a vice president, a secretary and a treasurer, and (2) Such other officers (including a chairman of the board, an executive vice president and additional vice presidents) and assistant officers and agents as the board of directors may deem necessary. (b) Officers named in By-Law 6.01(a)(1) shall be elected by the board of directors on the expiration of an officer's term or whenever a vacancy exists. Officers and agents named in By-Law 6.01(a)(2) may be elected by the board at any meeting. (c) Unless otherwise specified by the board at the time of election or appointment, or in an employment contract approved by the board, each officer's and agent's term shall end at the first meeting of directors after the next annual meeting of stockholders. He shall serve until the end of his term or, if earlier, his death, resignation, or removal. (d) Any two or more officers may be held by the same person. 6.02 Removal. Any officer or agent elected or appointed by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation will be served thereby. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights. 6.03 Vacancies. Any vacancy occurring in any office of the corporation (by death, resignation, removal or otherwise) may be filed by the board of directors. 10 14 6.04 Authority. Officers and agents shall have such authority and perform such duties in the management of the corporation as are provided in these By-Laws or as may be determined by resolution of the board of directors not inconsistent with these By-Laws. 6.05 Compensation. The compensation of officers and agents shall be fixed from time to time by the board of directors. 6.06 Chairman of the Board. If there be a chairman of the board of directors, he shall be chosen from among the directors and shall be the chief executive officer of the corporation, unless the board of directors shall designate the president as chief executive officer. He shall have the power to call special meetings of the stockholders and of the directors for any purpose or purposes, and he shall preside at all meetings of the stockholders and of the board of directors, unless he shall be absent or unless he shall, at his option, designate the president to preside in his stead at some particular meeting. The chairman of the board shall have all of the powers granted by the By-Laws to the president including the power to make and sign contracts and agreements in the name and on behalf of the corporation. He shall, in general, have supervisory power over the president, the other officers and the business activities of the corporation, subject to the approval or review of the board of directors. 6.07 President. If there be a chairman of the board of directors, the powers and duties of the president shall be subject to the powers and duties of the chairman of the board of directors. If there be no chairman of the board, the president shall have all the powers and duties provided for in By-Law 6.06 as well as those provided in this By-Law 6.07. The president, who need not be chosen from among the directors, shall be an ex officio member of all standing committees, shall, subject to the powers conferred upon the chairman of the board under By-Law 6.06 of this Article, be the chief executive officer of the corporation; preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business and affairs of the corporation, and shall see that all orders and resolutions of the board are carried into effect. He shall perform such other duties and have such other authority and powers as the board of directors may from time to time prescribe. 6.08 Executive Vice President. If there be an executive vice president, he shall be the ranking vice president and shall be the chief operating officer of the corporation unless the board of directors shall designate another officer as chief operating officer. In the absence or disability of the president, the executive vice president shall perform all the duties, exercise 11 15 the powers and assume all responsibilities of the president. He shall also generally assist the president and exercise any other powers and perform such other duties as are delegated to him by the president and as the board of directors shall prescribe. 6.09 Vice Presidents. The vice presidents in the order of their seniority, unless otherwise determined by the board of directors, shall, in the absence or disability of the president, perform the duties and have the authority and powers as the board of directors may from time to time prescribe or as the president may from time to time delegate. 6.10 Secretary. (a) The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for the executive committee when required. (b) He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors. (c) He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors or the executive committee, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary, which may be facsimile. (d) He shall be under the supervision of the president. He shall perform such other duties and have such other authority and powers as the board of directors may from time to time prescribe or as the president may from time to time delegate. 6.11 Assistant Secretaries. The assistant secretaries in the order of their seniority, unless otherwise determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and have the authority and exercise the powers of the secretary. They shall perform such other duties and have such other powers as the board of directors may from time to time prescribe or as the president may from time to time delegate. 6.12 Treasurer. (a) The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements of the corporation and 12 16 shall deposit all monies and other valuable effect in the name and to the credit of the corporation in such depositories as may be designated by the boards of directors. (b) He shall disburse the funds of the corporation as may be credited by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and directors, at the 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. (c) He shall perform such other duties and have such other authority and powers as the board of directors may from time to time prescribe or as the president may from time to time delegate. 6.12 Assistant Treasurers. The assistant treasurers in the order of their seniority, unless otherwise determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and have the authority and exercise the powers of the treasurer. They shall perform such other duties and have such other powers as the board of directors may from time to time prescribe or the president may from time to time delegate. 6.13 Bonding of Officers. If required by the board of directors, all or certain officers shall give the corporation a bond in such form, in such sum, and with such surety or sureties as shall be satisfactory to the board for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VII CERTIFICATES AND STOCKHOLDERS 7.01 Certificates. The corporation shall deliver certificates representing all shares to which stockholders are entitled. Certificates shall be consecutively numbered and shall be entered in the books of the corporation as they are issued. Each certificate shall state on the face thereof the holder's name, the number and class of shares, the par value of shares or a statement that such shares are without par value, and such other matters as may be required by law. They shall be signed by the president or a vice president and such other officer or officers as the board of directors shall designate, and may be sealed with the seal of the corporation or a facsimile thereof. The signature of any such officer may be facsimile. In case any 13 17 officer who has signed, of whose facsimile signature has been used on such certificate, shall cease to be such officer of the corporation before such certificate has been delivered by the corporation or its agents, such certificate may nevertheless be issued and delivered with the same effect as if he were still such officer at the date of issue. 7.03 Payment for Shares. (1) Kind. The consideration for the issuance of shares shall consist of money paid, labor done (including services actually performed for the corporation), or property (tangible or intangible) actually received. Neither promissory notes nor the promise of future services shall constitute payment for shares. (2) Valuation. In the absence of fraud in the transaction, the judgment of the board of directors as to the value of consideration received shall be conclusive. (3) Effect. When consideration, as fixed by law, has been paid, the shares shall be deemed to have been issued and shall be considered fully paid and non-assessable. (4) Allocation of Consideration. The consideration received for shares shall be allocated by the board of directors, in accordance with law, between stated capital and capital surplus accounts. 7.04 Subscription. Unless otherwise provided in the subscription agreement, subscription of shares, whether made before or after organization of the corporation, shall be paid in full at such time or in such installments and at such times as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same series, as the case may be. In case of default in the payment on any installment or call when payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due to the corporation. 7.05 Lien. For any indebtedness of a stockholder to the corporation, the corporation shall have a first and prior lien on all shares of its stock owned by him and on all dividends or other distributions declared thereon. 7.06. Lost, Stolen or Destroyed Certificates. The corporation shall issue a new certificate in place of any certificate for shares previously issued if the registered owner of the certificate: (a) Claim. Makes proof in affidavit form that it 14 18 has been lost or wrongfully taken or destroyed; and (b) Timely Request. Requests the issuance of a new certificate before the corporation has notice that the certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim; and (c) Bond. Gives a bond in such form, and with such surety or sureties, with fixed or open penalty, as the corporation may direct, to indemnify the corporation (and its transfer agent and registrar, if any) against any claim that may be made on account of the alleged loss, destruction, or theft of the certificate; and (d) Other Requirements. Satisfies any other reasonable requirements imposed by the corporation. When a certificate has been lost, apparently destroyed or wrongfully taken, and the holder of record fails to notify the corporation within a reasonable time after he has notice of it, and the corporation registers a transfer of the shares represented by the certificate before receiving such notification, the holder of record is precluded from making any claim against the corporation for the transfer or for a new certificate. 7.07 Registration of Transfer. The corporation shall register the transfer of a certificate for shares presented to it for transfer if: (a) Endorsement. The certificate is properly endorsed by the registered owner or by his duly authorized attorney; and (b) Guaranty and Effectiveness of Signature. The signature of such person has been guaranteed by a national banking association or member of the New York Stock Exchange, and reasonable assurance is given that such enforcements are effective; and (c) Adverse Claims. The corporation has no notice of an adverse claim or has discharged any duty to inquire into such a claim; and (d) Collection of Taxes. Any applicable law relating to the collection of taxes has been complied with; and (e) Stop Transfer Orders and Legends. The corporation has not issued a stop-transfer order or placed a legend on such certificate restricting transfer; or, if legended, the registered owner has complied with the conditions for transfer provided for in the legend. 15 19 ARTICLE VIII INDEMNIFICATION; INSURANCE 8.01 Persons. The corporation shall indemnify, to the extent provided in By-Laws 8.01, 8.02, and 8.04: (a) Any person who is or was director, officer, agent or employee of the corporation, and (b) Any person who serves or served at the corporation's request as a director, officer, agent, employee, partner or trustee of another corporation or of a partnership, joint venture, trust or other enterprise. 8.02 Extent -- Derivative Suits. In case of a suit by or in the right of the corporation against a person named in By-Law 8.01 by reason of his holding a position named in By-Law 8.01, the corporation shall indemnify him if he satisfies the standard in By-Law 8.03 for expenses (including attorney's fees but excluding amounts paid in settlement) actually and reasonably incurred by him in connection with the defense or settlement of the suit. 8.03 Standard -- Derivative Suits. In case of a suit by or in the right of the corporation, a person named in By-Law 8.01 shall be indemnified only if: (a) He is successful on the merits of otherwise; or (b) He acted in good faith in the transaction which is the subject of the suit, and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation. However, he shall not be indemnified in respect of any claim, issue or matter as to which he has been adjudged liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent that, the court in which the suit was brought shall determine upon application that, despite the adjudication but in view of all the circumstances, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper. 8.04 Extent -- Nonderivative Suits. In case of a suit, action or proceeding (whether civil, criminal, administrative or investigative) - other than a suit by or in the right of the corporation - together thereafter referred to as a nonderivative suit, against a person named in By-Law 8.01 by reason of his holding a position named in By-Law 8.01, the corporation shall indemnify him if he satisfied the standard in By-Law 8.05 for amount actually and reasonably incurred by him in connection with the defense or settlement of the nonderivative suit as: 16 20 (a) Expenses (including attorney's fees); (b) Amount paid in settlement; (c) Judgment; and (d) Fines. 8.05 Standard -- Nonderivative Suits. In case of non-derivative suit, a person named in By-Law 8.01 shall be indemnified only if: (a) He is successful on the merits or otherwise; or (b) He acted in good faith in the transaction which is the subject of the nonderivative suit, and in a manner reasonably believed to be in, or not opposed to, the best interest of the corporation and, with respect to any criminal action or proceeding, he has no reason to believe his conduct was unlawful. The termination of nolo contendere or its equivalent shall not, of itself, create a presumption that the person failed to satisfy the standard of this By-Law 8.05(b). 8.06 Determination That Standard Has Been Met. A determination that the standard of By-Laws 8.03 or 8.05(b) (second sentence), the determination may be made by: (1) A majority of the directors of the corporation (whether or not a quorum) who were not parties to the section, suit or proceeding, or; (2) Independent legal counsel in a written opinion; or (3) The stockholders of the corporation. 8.07 Proration. Anyone making a determination under By-Law 8.06 may determine that a person has met the standard as to some matters but not as to others, and may reasonably prorate amounts to be indemnified. 8.08 Advance Payment. The corporation may pay in advance any expenses (including attorney's fees) which may become subject to indemnification under By-Laws 8.01 - 8.08 if: (a) The board of directors authorizes the specific payment; and (b) The person receiving the payment undertakes in writing to repay unless it is ultimately determined that he is 17 21 entitled to indemnification by the corporation under By-Laws 8.01 -- 8.08. 8.09 Nonexclusive. The indemnification provided by By-Laws 8.01 -- 8.08 shall not be exclusive of any other rights to which a person may be entitled by the Certificate of Incorporation, law, by-law, agreement, vote of stockholders or disinterested directors, or otherwise. 8.10 Continuation. The indemnification and advance payment provided by By-Laws 8.01 -- 8.08 shall inure to his heirs, executors and administrators. 8.11 Insurance. The corporation may purchase and maintain insurance on behalf of any person who holds or who has held any position named in By-Laws 8.01, against any liability incurred by him in any position, or arising out of his status as such, whether or not the corporation would have power to indemnify him against such liability under By-Laws 8.01 -- 8.08. 8.12 Reports. Indemnification payments, advance payments and insurance payments made under By-Laws 8.01 -- 8.11 shall be reported in writing to the stock holders of the corporation with the next notice of annual meeting. ARTICLE IX. GENERAL PROVISIONS 9.01 Dividends and Reserves (a) Declaration and Payment. Subject to statute and the articles of incorporation, dividends may be declared by the board of directors at any regular or special meeting and may be paid in cash, in property, or in shares of the corporation. The declaration and payment shall be at the discretion of the board of directors. (b) Record Date. The board of directors may fix in advance a record date for the purpose of determining stockholders entitled to receive payment of any dividend, the record date to be not more than fifty days prior to the payment date of such dividend, or the board of directors may close the stock transfer books for such purpose for a period of not more than fifty days prior to the payment date of such dividend. In the absence of any action by the board of directors, the date upon which the board of directors adopts the resolution declaring the dividend shall be the record date. (c) Reserves. By resolution the board of directors may create such reserve or reserves out of the earned 18 22 surplus of the corporation as the directors from time to time, in their discretion, think proper to provide for contingencies, or to equalize dividends, or to repair or maintain any property of the corporation, or for any other purpose they think beneficial to the corporation. The directors may modify or abolish any such reserve in the manner in which it was created. 9.02 Books and Records. The corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its stockholders and board of directors, and shall keep at its registered office or principal place of business, or at the office of its transfer agent, agent or registrar, a record of its stockholders, giving the names and addresses of all stockholders and the number and class of the shares held by each. 9.03 Annual Statement. The board of directors shall mail to each stockholder of record, at least ten days before each annual meeting a full and clear statement of the business and condition of the corporation, including a reasonably detailed balance sheet, income statement, and surplus statement, all prepared in conformity with generally accepted accounting principles applied on a consistent basis. 9.04 Check and Notes. 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. 9.05 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 9.06 Seal. The corporation seal (of which there may be one or more exemplars) shall contain the name of the corporation and the name of the state of incorporation. The seal may be used by impressing it or reproducing a facsimile of it, or otherwise. 9.07 Resignation. Any director, officer or agent may resign by giving written notice to the president or the secretary. The resignation shall take effect at the time specified therein, or immediately if no time is specified therein. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 9.08 Amendment of By-Laws. These By-Laws may be altered, amended, or repealed at any meeting of the board of directors at which a quorum is present, by the affirmative vote of a majority of the directors present at such meeting, provided notice of the proposed alteration, amendment, or repeal is contained in the notice of such meeting. 19 23 9.09 Construction. Whenever the context so requires, the masculine shall include the feminine and neuter, and the singular shall include the plural, and conversely. If any portion of these By-Laws shall be invalid or inoperative, then, so far as if reasonable and possible; (a) The remainder of these By-Laws shall be considered valid and operative. (b) Effect shall be given to the intent manifested by the portion held invalid or inoperative. 9.10 Table of Contents; Headings. The table of contents and headings are for organization, convenience and clarity. In interpreting these By-Laws, they shall be subordinated in importance to the other written material. 20